Mr. Rajesh R Nair vs Mr. Shivananda Naik
2022 Latest Caselaw 3381 Kant

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      IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 28TH DAY OF FEBRUARY, 2022

                         BEFORE

           THE HON'BLE MR. JUSTICE H.P. SANDESH

         CRIMINAL REVISION PETITION NO.492/2021

BETWEEN:

MR. RAJESH R NAIR
S/O RADHAKRISHNAN NAIR
AGED ABOUT 36 YEARS
CHIEF WORKS ENGINEER (MES)
GANGAMMA CIRCLE, JALAHALLI
BENGALURU-560013
                                              ... PETITIONER

            (BY SRI ADITYA S KUMAR, ADVOCATE)

AND

MR. SHIVANANDA NAIK
S/O MAHABALESHWARA NAIK
AGED ABOUT 53 YEARS
R/AT NO 37, BANASHANKARI NILAYA
6TH CROSS, 2ND MAIN,
BAHUBALI NAGAR, JALAHALLI
BANGALORE-560013
                                             ... RESPONDENT

               (BY SRI G.JAIRAJ, ADVOCATE)


     THIS CRIMINAL REVISION PETITION IS FILED U/S.397(1)
R/W 401 CR.P.C BY THE PETITIONER PRAYING TO SET ASIDE
THE IMPUGNED JUDGMENT AND CONVICTION PASSED AGAINST
THE REVISION PETITIONER DATED 15.02.2019 (ANNEXURE-B)
IN C.C.NO.17202/2018 BY THE XII A.C.M.M., AT BENGALURU
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AND ALSO THE JUDGMENT CONFIRMED BY THE LXIV CITY CIVIL
AND SESSIONS JUDGE, AT BENGALURU IN CRL.A.NO.796/2019,
DATED 04.03.2021 (ANNEXURE-A) AND ETC.

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


                              ORDER

This matter is listed for admission.

2. Heard the learned counsel appearing for the

petitioner. The learned counsel appearing for the petitioner

submits that the Trial Court has erred in struck off the defence of

the petitioner herein and the same amounts to violating the

principles of natural justice and also violates Article 21 of the

Constitution of India and right to fair trial has not been given,

presumption of innocence has not been considered and

prosecution to prove its case beyond reasonable doubt. In the

present case, Section 143A of N.I. Act order itself is being an

interim compensation order made at the stage of pretrial and the

same had caused a serious prejudice to the accused/revision

petitioner and the amended provision only helps the Courts to

take adverse inference against the accused persons in a pretrial

stage. Moreover, it will defeat the valuable right available to the

accused as per law and it is not the meaning that the

accused/revision petitioner has committed the crime or accepted

the accusation made in the complaint and the interim

compensation payable under this Section may be recovered

under Section 421 of Cr.P.C and unfortunately the Trial Court

had not followed the procedure established by law and instead of

that straightaway convicted the revision petitioner and the same

is nothing but an illegal and arbitrary and also against the well

settled provisions of law and hence, it requires interference of

this Court.

3. The learned counsel appearing for the petitioner in

support of his arguments filed a memo along with citations but

the said citations are not pertaining to Section 138 of N.I. Act

under which the statement of the accused has not been recorded

under Section 313 of Cr.P.C and hence, the judgments relied

upon by the counsel for the petitioner are not applicable to the

case on hand. The main contention of the petitioner's counsel is

that accused statement under Section 313 of Cr.P.C was not

recorded by the Trial Court and the very approach of the Trial

Court is erroneous. But the Trial Court in paragraph 5 of the

order held that the complaint is a summary trial and recording of

statement under Section 313 of Cr.P.C was dispensed with and

for the defence evidence, accused failed to cross-examine PW1

and it was also observed that on 19.01.2019, the counsel for

accused failed to appear before the Court and inspite of issuance

of NBW, they have not filed any application under Section 145(2)

for adducing defence evidence and hence, defence evidence is

taken as no evidence. Since accused has not at all cross-

examined PW1, the evidence of PW1 is unchallenged, accused

has violated the mandatory provision of Section 143A of N.I.Act,

hence, defence evidence was struck off relying upon the decision

reported in AIR 2014 SC 2528 in INDIAN BANK

ASSOCIATION AND OTHERS vs UNIION OF INDIA AND

OTHERS wherein the Apex Court considered Sections 138, 143,

145 of N.I. Act in a summary trial and the Trial Court also

considered the material available on record which was marked

on behalf of the complainant i.e., Exs.P1 to P9 and in paragraph

12 of the order, the Trial Court held that if really, accused had

not at all borrowed the loan in question, he would not issued

Exs.P1 and P2-cheques to the complainant for discharge of the

loan and also not adduced defence evidence and also not cross-

examined PW1 and he has not disputed the issuance of cheques

at Exs.P1 and P2. It is also emerged in the records that accused

has not paid the amount as ordered by the Trial Court to pay the

interim compensation and hence, the Trial Court came to the

conclusion that accused had committed the offence punishable

under Section 138 of N.I. Act and convicted him imposing fine of

Rs.21 lakh and in default of payment of said fine amount, he

shall undergo simple imprisonment for a period of three months.

4. Being aggrieved by the said order, an appeal was

filed before the Appellate Court on the very same ground that

statement of accused under Section 313 of Cr.P.C was not

recorded and the matter shall be remanded to Trial Court for

fresh disposal and the Appellate Court also taken note of the

material on record and came to the conclusion that the

documents which have been executed by the complainant are

corroborates to his case and also taken note that PW1 had not

been cross-examined and Trial Court has also considered the

evidence adduced by the complainant and further observed that

despite of sufficient opportunity was given, accused had failed to

deposit 20% of the cheque amount within stipulated time and

hence, there was no compliance of mandatory provision of

Section 143 of N.I.Act and Appellate Court also relied upon the

judgments reported in AIR 2009 NOC 404 (KERALA) and

2014 AIR SCW 3462 and came to the conclusion that the

petitioner herein has committed the offence punishable under

Section 138 of N.I. Act and failed to cross-examine PW1 and not

complied with the order as mandatory under Section 143A of

N.I. Act and confirmed the order of the Trial Court.

5. Having heard the learned counsel appearing for the

petitioner and also on perusal of the material available on

record, it is clear that the scope of the revision is very limited

and this Court has to take note of the illegality committed by

both the Courts and if both the Courts were committed illegality

and perversity in coming to the conclusion without considering

the material placed on record, then this Court can invoke Section

401 of Cr.P.C but taking into consideration of the material on

record, I do not find any perversity or illegality committed by

both the Courts. The records revealed that the Trial Court had

passed an order to pay 20% of the cheque amount and the same

has not been paid and also not cross-examined PW1. The very

argument of the petitioner's counsel is that the statement under

Section 313 of Cr.P.C was not recorded and in support of his

arguments, he relied upon several judgments but those

judgments are not in respect of Section 138 of N.I. Act and

Section 143A of N.I. Act is clear that in a cheque bouncing case,

an interim compensation can be granted up to 20%. The

contention of the petitioner's counsel is that the interim

compensation payable under Section 143A may be recovered as

if it were a fine under Section 421 of Cr.P.C and the Court

cannot struck off the defence and without following the

procedure established by law, the Trial Court convicted the

revision petitioner and the said contention cannot be accepted

and hence, I do not find any merit in the petition to interfere

with the order of the Trial Court as well as the Appellate Court.

6. In view of the discussions made above, I pass the

following:

ORDER

The revision petition is dismissed.

Sd/-

JUDGE

SN