Y.V. Manjunatha vs B.V.Nagabhushana
2022 Latest Caselaw 2323 Kant

 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

    DATED THIS THE 14 T H DAY OF FEBRUARY, 2022

                        BEFORE

THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR

 CRIMINAL REVISION PETITION NO.914 OF 2015


BETWEEN:

Y.V.Manjunatha,
S/o Y.S.Venkataramanaiah,
Aged about 58 years,
Occ: Ag riculturist,
R/o Edig ere, Seethuru Post,
N.R.Pura Taluk,
Chikkamag aluru District-577101.
                                         ...Petitioner
(By Sri P.N.Harish, Advocate)

AND:

B.V.Nagab hushana
S/o Ved amurthappa Gowda,
Aged 61 years,
Occ: Businessman,
R/o. Beland uru Villag e,
Karehalli Hob li, Hosanag ara Taluk,
Shivamogga District-577418.
                                       ...Respondent
(By Sri Sand esh T.B., Advocate)


      This Criminal Revision Petition is filed under
Section 397 of Cr.P.C. p raying to set aside the
judgment and order dated 10.08.2015 passed by the
III   Additional  Sessions  Jud ge,  Shivamogga   in
Crl.A.No.40/2012 in confirming the judgment and
order of conviction d ated 20.01.2012 passed by the
Civil Judge and JMFC, Hosanag ara in C.C.No.497/2005
                           :: 2 ::


and thereby dismiss the complaint in C.C.No.497/2005
on the file of Civil Judge and JMFC, Hosanag ara b y
allowing this revision p etition.

    This Criminal Revision Petition coming on              for
hearing this day, the Court made the following:


                          ORDER

This revision petition is filed by the accused

who has been convicted for the offence under

section 138 of the Negotiable Instruments Act in

C.C. 497/2005 on the file of Civil Judge and JMFC,

Hosanagara. The III Additional Sessions Judge,

Shivamogga, dismissed Criminal Appeal 40/2012

filed by the petitioner challenging his conviction in

C.C.497/2005. Hence, this revision petition.

2. Heard Sri P.N.Harish, learned counsel for

the petitioner and Sri Sandesh T.B, learned

counsel for the respondent.

3. Sri P.N.Harish submits that in the

complaint preferred by the respondent, it is clearly

stated that the petitioner was to pay :: 3 ::

Rs.4,00,000/- to one B.T.Mruthyunjaya in

accordance with a settlement that was arrived in

the presence of panchayatdars and that the

petitioner was given four years time to repay the

said sum. There was a condition that the

petitioner was to pay Rs.25,000/- every year to

Mruthyunjaya towards interest. Assuring the

repayment in the manner decided in the

settlement, the petitioner handed over a blank

cheque to one K.T.Krishnamurthy who was one of

the panchayatdars. Then he referred to Ex.P5, the

memorandum of settlement between

B.T.Mruthyunjaya and the petitioner in the

presence of panchayatdars and argued that in

Ex.P5, it is clearly written that the cheque bearing

0228408 was given to K.T.Krishnamurthy to be

held by him till petitioner would clear the loan of

B.T.Mruthunjaya and that it was a blank cheque.

Since the trial court did not properly appreciate

the impact of Ex.P5, in the appeal the petitioner :: 4 ::

made an application under section 311 Cr.P.C for

summoning K.T.Krishnamurthy as a witness on his

behalf. The appellate court heard the arguments

on this application, but instead of passing orders,

decided the appeal on merits confirming the

judgment of the Magistrate. Thus, the judgment

of the appellate court suffers from infirmity. In

this view, this revision petition is to be allowed

and the matter remanded to the appellate court

for decision on the application under section 311

Cr.P.C.

4. Sri Sandesh T.B, learned counsel for the

respondent, submits that both the courts have

properly appreciated the evidence to come to

conclusion that the petitioner was to pay an

amount of Rs.4,70,000/- to the respondent and in

this connection the petitioner issued the cheque in

question. The petitioner might have made an

application under section 311 Cr.P.C in the :: 5 ::

appellate court and that the appellate court might

not have passed any order on the application,

nevertheless both the courts have consistently

taken a view that the petitioner issued the cheque

for discharging debt which was legally enforceable

and therefore this revision petition is to be

dismissed.

5. I have perused the complaint and in

particular Ex.P5. In the complaint it is clearly

stated that the petitioner, i.e., accused issued a

blank cheque to be held by K.T.Krishnamurthy in

relation to the outstanding due by him to

B.T.Mruthyunjaya. In Ex.P5 it is clearly written

that pursuant to the settlement, the petitioner

issued a blank cheque bearing No. 0228408 as a

security for the loan that he was to repay to Sri

B.T.Mruthyunjaya and this cheque was given to

the custody of K.T.Krishnamurthy. Ex.P1 is the

cheque in question and it bears the number :: 6 ::

0228408. That means Ex.P1 is the very same

cheque whose number is written in Ex.P5. In this

view, K.T.Krishnamurthy was a material witness in

favour of the accused to disclose the actual

transaction. Nothing prevented the petitioner

from examining K.T.Krishnamurthy in the trial

court itself. However, he was not examined.

Anyway he made an application in the appellate

court under section 311 Cr.P.C. The order sheet

of the Sessions Court shows that though the

appellate court judge heard the arguments on this

application, he did not pass any orders; instead he

proceeded to decide the appeal on merits. In this

view, the interest of the petitioner has suffered.

Therefore without expressing any opinion on

merits, I am of the opinion that this matter

deserves to be remanded to the appellate court for

consideration of the application under section 311

Cr.P.C.

:: 7 ::

6. It is to be stated that the purpose of

making an application under section 311 Cr.P.C

was to lead further evidence in the appellate

stage and petitioner being the appellant ought to

have filed another application under section 391

Cr.P.C. Therefore the petitioner is given liberty to

make such application in the appellate court for

consideration of his application under section 311

Cr.P.C. With these observations, this revision

petition is allowed. The judgment of the appellate

court is set aside, the matter is remanded to the

appellate court for decision on merits by

considering the application under section 311

Cr.P.C and also the application to be filed under

section 391 Cr.P.C. Parties shall appear before

the appellate court on 2.3.2022.

Sd/-

JUDGE

ckl/-