Sri Bhanaram Choudhary vs M/S Ebsi Pvt Ltd
2022 Latest Caselaw 10893 Kant

                             1




 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 18TH DAY OF JULY, 2022

                          BEFORE

        THE HON'BLE MR.JUSTICE MOHAMMAD NAWAZ

           CRIMINAL APPEAL No.1037 OF 2021

BETWEEN:

SRI. BHANARAM CHOUDHARY,
S/O. JASARAM,
AGED ABOUT 45 YEARS,
R/AT NO.40, MADHUNAGARA NAGAR,
MOODALAPALYA MAIN ROAD,
BANGALORE - 560 072.                             ...   APPELLANT

[BY SRI. VIJAYA KUMAR BHAT A., ADVOCATE]

AND:

1.     M/S. EBSI PVT. LTD.
       # 465/A, 22ND CROSS,
       OPP. NMKRV WOMEN COLLEGE,
       JAYANAGAR III BLOCK,
       BENGALURU - 560 011,
       REP. BY ITS DIRECTOR/PROPIETOR,
       SRI. SOMASHEKAR.

2.     SRI. SOMSHEKAR
       DIRECTOR/PROPRIETOR,
       M/S. EBSI PVT. LTD.
       #465/A, 22ND CROSS,
       OPP. NMKRV WOMEN COLLEGE,
       JAYANAGAR III BLOCK,
       BENGALURU - 560 011.                ...   RESPONDENTS

[BY SRI. VINAYA B.R., ADVOCATE]

                            ***

     THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4)
OF CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT PASSED BY
                              2




THE   HON'BLE    XXIII   ADDITIONAL   CHIEF   METROPOLITAN
MAGISTRATE, BANGALORE CITY ON 16.03.2021 IN C.C.
NO.33334/2018 AND CONSEQUENTLY CONVICT/PUNISH THE
RESPONDENT FOR THE OFFENCE PUNISHABLE UNDER SECTION
138 OF THE N.I. ACT, 1881 BY ALLOWING THE APPEAL.

     THIS CRIMINAL APPEAL COMING ON FOR ADMISSION,
THROUGH VIDEO CONFERENCE/PHYSICAL HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:


                        JUDGMENT

This appeal is preferred by the complainant in C.C.

No.33334/2018 on the file of the Court of XXIII Additional

Chief Metropolitan Magistrate, Bengaluru City, whereby,

vide impugned Judgment dated 16.03.2021, the learned

Magistrate has acquitted the respondents/accused Nos.1

and 2 of offence punishable under Section 138 of the

Negotiable Instruments Act [hereinafter referred to as 'N.I.

Act' for short].

2. Though the matter is listed for admission, with

the consent of both the learned counsel, it is taken up for

final disposal.

3. It is the complainant's case that accused No.2

was running a company under the name and style 'D

Capital Pvt. Ltd.' and for improvement of the said business,

he took a hand-loan of `6 lakhs from the complainant on

23.03.2017 promising that the said amount will be

returned within a short period. Towards repayment of the

loan amount, he issued a cheque bearing No.000001, dated

24.05.2018 for a sum of `6 lakhs, drawn on Bank of

Baroda, Jayanagar, Bengaluru. The said cheque when

presented to the Bank, was dishonoured on 29.05.2018

with an endorsement 'funds insufficient'. Again the

complainant presented the said cheque in the first week of

July 2018 at the request of the accused, but the cheque

came to be dishonoured on 05.07.2018 with an

endorsement stating 'opening balance insufficient'. Once

again the said cheque was presented to the bank during

third week of August 2018. However, it was dishonoured

again on 13.08.2018 for the reason 'funds insufficient' in

the account of the accused. Thereafter, a legal notice was

issued to the accused on 05.09.2018 and inspite of due

service of notice on the accused, he failed to pay the

amount and therefore, committed an offence punishable

under Section 138 of the N.I. Act.

4. On going through the impugned Judgment, it is

seen that the complainant's sworn statement was recorded

and he was examined as P.W.1 and on his behalf, Exs.P1 to

9 were got marked. On appearance of accused No.2, the

matter was listed for cross-examination of P.W.1. On the

said date, P.W.1 remained absent. Further, the parties

were given an opportunity to settle the matter before the

Lok Adalat. However, the matter was not settled. The

accused as well as the complainant remained absent before

the Lok Adalat. Thereafter, when the case was listed

before the Court, the complainant was absent and

therefore, the learned Magistrate recorded the statement of

accused under Section 313 of Cr.P.C. and passed the

Judgment acquitting the accused.

5. The learned Magistrate has proceeded to acquit

the accused mainly on the ground that P.W.1 did not

tender for cross-examination despite knowing the date. It

is observed that the evidence of P.W.1 has no significant

role and no value can be attached. The trial Court has also

come to the conclusion that the complainant has utterly

failed to demonstrate his case and therefore, benefit of

doubt has to be given to accused No.1. According to the

trial Court, the evidence of the accused regarding denial of

borrowing of loan and issuance of cheque is not proved by

the complainant.

6. The learned counsel for the appellant submits

that due to restrictions imposed, during covid pandemic,

the complainant could not appear before the trial Court to

tender himself for cross-examination. He submits that the

cheque amount is `6 lakhs and therefore, the complainant

may be given an opportunity to tender himself for cross-

examination, otherwise there will be miscarriage of justice.

7. The learned counsel appearing for the

respondents submits that the complainant has deliberately

remained absent and therefore the trial Court has rightly

held that the evidence of the accused regarding denial of

borrowing of loan and issuance of cheque is not proved by

the complainant. He submits that no sufficient ground is

made out to allow the appeal.

8. It is not in dispute that the complainant was not

cross-examined. When the case was listed before the Lok

Adalat, both the parties remained absent. Material on

record does not indicate that there was any deliberate

lapse on the part of the complainant to remain absent or

for failing to tender for cross-examination. In support of

his case, the complainant has produced and marked 9

documents. Keeping in view the submission made by the

learned counsel for the appellant/complainant and

considering the facts and circumstances, an opportunity

can be given to the complainant to establish his case, by

imposing cost. Hence, the following:

ORDER

Appeal is allowed. The impugned Order dated

16.03.2021 passed in C.C. No.33334/2018, on the file of

the Court of XXIII Additional Chief Metropolitan Magistrate,

Bengaluru City, is set aside.

The learned Magistrate shall proceed with the case

from the stage of cross-examination of P.W.1 and shall

pass Judgment in accordance with law after hearing both

the parties.

Both the parties are directed to appear before the

trial Court without further notice on 01.08.2022 and on

further dates given by the trial Court.

The appellant/complainant shall pay a cost of

`10,000/- [Rupees Ten Thousand only], out of which a sum

of `5,000/- [Rupees Five Thousand only] shall be deposited

with the Karnataka State Legal Services Authority and

another sum of `5,000/- [Rupees Five Thousand only] shall

be paid to the respondent/accused.

The receipt for having paid the amount by the

appellant/complainant shall be furnished to the trial Court,

on the next date of hearing.

Registry shall send back the trial Court records

forthwith.

Sd/-

JUDGE Ksm*