R Nanjegowda vs I Raghavareddy
2022 Latest Caselaw 8262 Kant

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 7TH DAY OF JUNE 2022

                           BEFORE

THE HON'BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY

  CRIMINAL REVISION PETITION No.1390 OF 2019

BETWEEN:

R.Nanjegowda,
Son of Rangaiah,
Aged about 65 years,
Residing at # 8,
Ground Floor, Sirpada,
20th Main, J C Nagar,
(Kurubarahalli),
Shankarmutt,
Mahalakshmipuram,
Bengaluru-560 010.                         .. Petitioner

 ( By Sri Abhinay Y.T., Advocate )

AND:

I Raghavareddy,
Son of (late) T.I.Reddy,
Aged about 68 years,
And residing at # 14/16,
(912/22), Patel Nanjappa
Reddy Colony, I Main Road,
Yeshwanthapura,
Bengaluru-560 022.                         .. Respondent

 ( By Sri K.H.Heroor, Advocate )

     This Criminal Revision Petition is filed under Section
397(1) and Section 401 of Cr.P.C. praying to set aside the
judgment dated 16.09.2019, passed in Criminal Appeal No.438
                                               Crl.R.P.No.1390/2019
                               2


of 2019, passed by the LXIV Addl.City Civil and Sessions Judge
at Bangalore City (CCH-65) and also the judgment dated
3.11.2018, passed by the XII Addl.Chief Metropolitan Magistrate
at Bengaluru in C.C.No.27729 of 2017, to meet the ends of
justice.

      This Criminal Revision Petition is coming on for Admission
through Physical Hearing/Video Conferencing Hearing, this day
the Court made the following:

                            ORDER

The present petitioner was accused in

C.C.No.27729/2017, in the Court of the learned XII

Addl.Chief Metropolitan Magistrate, Bengaluru, (hereinafter

for brevity referred to as the "trial Court"). By its judgment

dated 03.11.2018, the trial Court convicted the accused

for the offence punishable under Section 138 of Negotiable

Instruments Act, 1881 (hereinafter for brevity referred to

as `N.I.Act') and was sentenced accordingly.

2. The summary of the case of the complainant in the

trial Court was that both the complainant and accused

were known to each other for the past several years. Due

to such well-acquaintance between them, the complainant

entertained the request of the accused for a hand loan of a

sum of `5 lakhs. Accordingly, in the first week of Crl.R.P.No.1390/2019

March 2007, in order to meet out the hard-pressing debts

and other legal necessities of the accused, the complainant

advanced a hand loan of a sum of `5 lakhs by cash. The

accused had agreed to repay the said loan amount within

six months. However, at the repeated request made by

the complainant, the accused issued him a cheque bearing

No.642004, dated 07.10.2017, drawn on ING Vysya Bank

Ltd., Vijayanagar, Bengaluru, in favour of the complainat

for a sum of `5 lakhs towards the repayment of the debt.

However, the said cheque when presented for realisation,

returned unpaid with the banker's endorsement as "funds

insufficient". The complainant got issued a legal notice

dated 17.10.2017 to the accused demanding the payment

of the cheque amount. In spite of receipt of notice, since

the accused did not pay the cheque amount, the

complainant was constrained to file a criminal case against

him in the trial Court in C.C.No.27729/2017 for the offence

punishable under Section 138 of N.I.Act.

Crl.R.P.No.1390/2019

3. Since the accused pleaded not guilty, charges were

framed against the accused for the alleged offences.

4. The complainant in order to prove his case, got

examined himself as PW-1 and got marked five documents

from Exs.P-1 to P-5. On behalf of the accused, neither any

witness was examined nor any documents were marked.

5. After hearing both side, the trial Court by its

impugned judgment dated 03.11.2018, convicted the

accused for the offence punishable under Section 138 of

N.I.Act and sentenced him accordingly.

6. Challenging the said order, the accused has

preferred an appeal in Criminal Appeal No.438/2019,

before the learned LXIV Addl.City Civil and Sessions Judge

(CCH-65), at Bengaluru, (hereinafter for brevity referred to

as `Sessions Judge's Court), which by its judgment dated

16.09.2019, dismissed the appeal by confirming the

judgment of conviction passed by the trial Court. It is Crl.R.P.No.1390/2019

against these judgments of conviction, the accused has

preferred this revision petition.

7. The respondent is being represented by his

learned counsel.

8. Records from the trial Court and Sessions

Judge's Court pertaining to the matter were called for and

the same are placed before the Court.

9. Though this matter is listed for admission, with the

consent from both parties, the matter was taken up for

arguments on main on merits.

10. Heard the arguments of learned counsel from

both side. Perused the materials placed before this Court.

11. The only point that arises for my consideration

is,-

"Whether the impugned judgments suffer from perversity, illegality, impropriety warranting any interference at the hands of this Court".

Crl.R.P.No.1390/2019

12. The learned counsel for the petitioner in his very

brief argument submitted that the trial Court had granted

eight adjournments for the cross-examination of PW-1 and

on all those dates, the accused was present before the

Court, however, his counsel did not appear. On the next

date of hearing, when the accused had remained absent,

the trial Court proceeded to take the cross-examination of

PW-1 as `Nil', as such, an opportunity be given to the

accused to cross-examine PW-1 and to lead his evidence.

13. Learned counsel for the respondent in his

arguments submitted that sufficient opportunities have

already been given to the accused in the trial Court, as

such, granting any further opportunity would not arise.

14. The complainant in the case got himself examined

as PW-1, who in his examination-in-chief filed in the form

of affidavit evidence has reiterated the contentions taken

up by him in his memorandum of complaint. In support of

his contention, he got produced and marked the alleged

dishonoured cheque at Ex.P-1, the signature of the accused Crl.R.P.No.1390/2019

therein at Ex.P-1(a), the banker's endorsement for

returning of the cheque at Ex.P-2, office copy of the legal

notice at Ex.P-3, the postal receipt for having sent the legal

notice to the accused at Ex.P-4 and the postal

acknowledgement as an acknowledgment for service of

notice upon the accused at Ex.P-5.

15. PW-1 was not cross-examined on the day when

his examination-in-chief was recorded, however, admittedly

on 20.11.2017, when the examination-in-chief of PW-1 was

completed, till 23.07.2018, not less than eight

adjournments were granted at the request of the accused

to enable him to cross-examine PW-1. On 23.07.2018, the

trial Court in the deposition sheet by recording that accused

had remained absent and no exemption application was

filed and that from 20.11.2017, since sufficient

opportunities have been granted to the accused to

cross-examine PW-1, but, the accused and his counsel

since have remained absent, taken the cross-examination Crl.R.P.No.1390/2019

of PW-1 as `Nil'. Thus, the evidence of PW-1 both oral and

documentary remains undisputed.

16. A perusal of the trial Court records would also go

to show that after the date 23.07.2018, when the

cross-examination of PW-1 was taken as `Nil', till the date

of pronouncement of the impugned judgment by the trial

Court, which was on 03.11.2018, not less than seven dates

of hearing have been passed. On none of these occasions,

the accused filed any application seeking recalling of PW-1

for his cross-examination and for the accused side

evidence. On the other hand, the trial Court record would

go to show that the accused had remained absent. As

such, even to secure the address of the accused, the trial

Court had to issue non-bailable warrant to the accused,

which also remained unexecuted. Thereafter, the bail

bonds were cancelled and the cash surety amount was also

forfeited by the trial Court.

17. Thus, apart from not cross-examining the

complainant despite giving not less than eight Crl.R.P.No.1390/2019

opportunities, the accused remained absent from appearing

before the Court and non-bailable warrant issued against

him also could not be executed. Ultimately, the trial Court

has to take recourse for forfeiting the surety bond.

Therefore, the very conduct of the accused would go to

show that he was least bothered about the criminal case

pending against him and had remained absent and despite

granting sufficient opportunities, he did not cross-examine

PW-1.

18. The accused who had suffered the judgment of

conviction passed by the trial Court preferred an appeal

before the Sessions Judge's Court in Criminal Appeal

No.438/2019, wherein also he took a contention that he

must be given an opportunity to cross-examine PW-1 and

to lead his defence evidence. In that regard, in Paragraph-

18 of its judgment, learned Sessions Judge has made the

following observation :

" 18. In this appeal, appellant now submitting that, due to ill health, he was unable to cross-examine Pw.1 and unable to cross-examine Crl.R.P.No.1390/2019

himself as defence witness. Learned counsel for the respondent submitted that, 8 dates were given in the trial court for cross-examination of Pw.1. From 17.2.2018 to 28.9.2018, trial court adjourned matter for cross-examination of Pw.1. All documents produced by the appellant relating to medical treatments are dated after pronouncement of judgment in the trial court. In fact, cross- examination of complainant to be conducted by the counsel engaged by the accused. Only responsibility of the accused was to give proper instruction for cross-examination."

I do not find any reason either to disagree with the

reason given by the trial Court to proceed further in the

matter in pronouncing the judgment or with the reasoning

given by the Sessions Judge's Court by not considering the

request for giving an opportunity to the accused to cross-

examine PW-1. After giving not less than eight

opportunities to cross-examine PW-1 to the accused and

still the accused remaining absent and not even amenable

to non-bailable warrant ordered against him, would itself go

to show that he had decided that some how he has to drag

on the matter and not to participate in the proceeding and Crl.R.P.No.1390/2019

to cause delay in dispensation of justice. Even his stand

taken up in the Sessions Judge's Court of alleged medical

treatment also appears to be subsequent to the trial Court

pronouncing the judgment. Therefore, the non-giving of an

opportunity to the accused as contended by the petitioner

herein is not the fact, but, despite granting sufficient

opportunities, the accused for no valid and convincing

reason, did not cross-examine PW-1, remains the fact.

As such, the sole argument of learned counsel for the

petitioner that the petitioner/accused be given one more

opportunity to cross-examine PW-1 is not convincing.

19. The evidence of PW-1, which has remained

undenied, supported by the cheque at Ex.P-1 and the

banker's endorsement at Ex.P-2, which shows that there

was no sufficient balance in the account of the

drawer/accused on the date when the cheque was

presented for its realisation and also the copy of legal

notice at Ex.P-3 and the postal acknowledgement at Ex.P-5,

which further go to show that the complainant had Crl.R.P.No.1390/2019

demanded the payment of cheque amount from the

accused within the statutory period, but, still the accused

did not pay the cheque amount, would make it clear that

the complainant has proved the alleged guilt against the

accused beyond reasonable doubt.

20. It is analysing the evidence placed before them in

their proper perspective, both the trial Court, as well as

the Sessions Judge's Court have convicted and confirmed

the conviction of the accused for the offence punishable

under Section 138 of N.I.Act respectively.

21. It is the sentencing policy that the sentence

ordered should not be either exorbitant nor for name sake

for the proven guilt. It must be proportionate to the

gravity of the guilt for which the accused is found guilty of.

In the instant case, the petitioner/accused is convicted

for the offence punishable under Section 138 of N.I.Act

and is sentenced to pay fine of `5,00,000/- and in default

of payment of fine, to undergo simple imprisonment for a Crl.R.P.No.1390/2019

period of two months. Since in the light of the facts and

circumstances of the case, the sentence ordered by the

trial Court and confirmed by the Sessions Judge's Court

being proportionate to the gravity of the proven guilt

against the accused, I do not find any reason to interfere

in the impugned judgments.

22. Accordingly, I proceed to pass the following

order:

ORDER

The Criminal Revision Petition is dismissed as

devoid of merits.

Registry to transmit a copy of this order to both the

trial Court as also the Sessions Judge's Court along with

their respective records forthwith.

Sd/-

JUDGE

bk/