Sri. Sudhakar Rajachar vs Sri. M.R. Sathyamurthy
2021 Latest Caselaw 3482 Kant

  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 23RD DAY OF OCTOBER, 2021

                      BEFORE

       THE HON'BLE MR. JUSTICE V. SRISHANANDA

   CRIMINAL REVISION PETITION NO.374/2019

BETWEEN

SRI. SUDHAKAR RAJACHAR
S/O RAJACHAR,
AGED ABOUT 56 YEARS,
R/AT NO.402, 4TH FLOOR,
HEMADHRI RESIDENCY,
SITE NO.1020,
DR. RAJKUKAR ROAD,
4TH BLOCK,
RAJAJINAGAR,
BENGALURU-560010
                                      ...PETITIONER

(BY SRI R V SHIVANANDA REDDY , ADVOCATE)

AND

SRI. M.R. SATHYAMURTHY
S/O RAMANNA,
AGED ABOUT 62 YEARS,
R/AT NO.258,
4TH MAIN ROAD,
MAHALAKSHMI LAYOUT
BENGALURU-560079
                                      ...RESPONDENT

(BY SRI K.B.PRASANNA, ADVOCATE)
                                  2


     THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C
PRAYING TO SET ASIDE THE JUDGMENT AND ORDER
DATED    04.10.2018  OF  CONVICTING    PASSED    IN
C.C.NO.15835/2017 ON THE FILE OF THE XVIII A.C.M.M.,
BANGALORE IN CRL.A.NO.2029/2018 DATED 06.03.2019
ON THE FILE OF THE 64th ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, BANGALORE ACQUIT THE RESPONDENT
FOR THE OFFENCE U/S 138 OF N.I ACT.

     THIS CRIMINAL REVISION PETITION COMING ON
FOR ADMISSION THIS DAY, THE COURT MADE THE
FOLLOWING:-

                               ORDER

Heard Sri R.V. Shivananda Reddy, learned counsel

for the Revision Petitioner and Sri K.B. Prasanna, learned

counsel for the respondent, with the consent of the parties,

even though the matter is listed for admission, taken up

for final disposal. Perused the records.

2. This Revision Petition is filed challenging the

order dated 4.10.2018 passed in CC No.15835/2017 by

the XVIII Addl. CMM, Bengaluru, whereby the accused

have convicted for the offence punishable under Section

138 of the Negotiable Instruments Act [hereinafter

referred to as the 'said Act' for short] and ordered to pay

fine of Rs.11,00,000/-. Out of which, a sum of

Rs.10,90,000/- was ordered to be paid as compensation to

the complainant which was confirmed in Criminal Appeal

No.2029/2018 dated 6.3.2019 on the file of the LXIV Addl.

City Civil & Sessions Judge (CCH-65), Bengaluru.

3. Learned counsel for the Revision Petitioner at the

out set contends that both the courts have grossly erred in

convicting the accused without there being recording of the

accused statement as contemplated under Section 313

Cr.PC., and therefore, sought for allowing the Revision

Petition.

4. Per contra, learned counsel for the respondent Sri

Prasanna contended that since the accused did not contest

the matter before the Trial Court, there was no other

alternative for the court except to convict the accused by

dispensing the recording of accused statement and thus

sought for dismissal of the Revision Petition.

5. A sum of Rs.5,50,000/- has already deposited by

the Revision Petitioner before the Trial Court as per the

orders passed by the first Appellate Court and this court.

6. Recording of an accused statement as

contemplated under Section 313 Cr.PC., is not an empty

formality. In the first place, it gives me an opportunity to

explain the incriminatory circumstances found against him

and in the second place it gives an opportunity for the

accused to have his version in the said aspect of the

matter. In this regard, this court places reliance on the

judgment of the Hon'ble Apex Court in the case of Ravi

Kapur Vs. State of Rajasthan reported in (2012) 9 SCC

284 wherein, it has been held at para No.39 as under:

"39. It is true that the prosecution is required to prove its case beyond reasonable doubt but the provisions of Section 313 Cr.P.C. are not a mere formality or purposeless. They have a dual purpose to discharge, firstly, that the entire material parts of the incriminating evidence should be put to the accused in

accordance with law and, secondly, to provide an opportunity to the accused to explain his conduct or his version of the case. To provide this opportunity to the accused is the mandatory duty of the Court. If the accused deliberately fails to avail this opportunity, then the consequences in law have to follow, particularly when it would be expected of the accused in the normal course of conduct to disclose certain facts which may be within his personal knowledge and have a bearing on the case."

Therefore, not following the mandatory procedure of

recording accused statement has resulted in miscarriage of

justice and therefore, the Impugned order passed by the

learned Magistrate needs to be set aside. Unfortunately,

the first Appellate Court did not bestow its attention to the

said aspect of the matter. Therefore, the case is made out

by the accused for interfering with the orders passed by

the learned Magistrate as well as the first Appellate Court.

7. However, it is noticed that the case is of the year

2017. The scheme of the Negotiable Instruments Act and

the catena of the judicial pronouncements made by the

Hon'ble Apex Court and this court time and again have

said that cases filed under Section 138 of the Negotiable

Instruments Act needs to be disposed of at an early date.

Keeping the said aspect of the matter in view, ends of

justice would be met, if 50% amount already deposited by

the accused is permitted to be withdrawn by the

complainant subject to the final outcome of the

complainant in CC No.15835/2017 and the matter is

remitted to the Trial Court for recording the accused

statement and also affording an opportunity for the

accused to lead defence evidence. Accordingly, following

order is passed:

ORDER

Criminal Revision Petition is allowed. The amount in

deposit to the extent of 50% of the fine amount in a sum

of Rs.5,50,000/- is permitted to be withdrawn by the

complainant subject to the final result of CC No.

15835/2017, the impugned order is hereby set aside and

the matter is remitted to the learned Trial Court, for fresh

disposal in accordance with law. The parties are directed

to be present before the learned Trial Judge without

further notice on 15.11.2021 positively.

Learned Trial Judge thereafter, shall record the

accused statement if an application is made and permit the

accused to lead defence evidence. Having regard to the

age of the criminal case, the learned Magistrate is directed

to dispose of the main matter on or before 28.2.2022.

Needless to emphasize that the parties shall co-operate for

the same.

Sd/-

JUDGE

PL*