Jagadish vs Sri Murthy N
2022 Latest Caselaw 4037 Kant

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 9TH DAY OF MARCH, 2022

                          BEFORE

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

          CRIMINAL REVISION PETITION NO.246/2018

BETWEEN:

JAGADISH
S/O HITA RAM
AGED ABOUT 24 YEARS
R/AT NO.42/1, C/O MAHESH SALES
MALLIKARJUNA SWAMY TEMPLE STREET
BVK IYENGAR ROAD, CHIKPET
BANGALORE 560 002
                                            ... PETITIONER

            (BY SRI RAJASHEKARA R.V, ADVOCATE)

AND:

SRI MURTHY N
S/O L.N. MURTHY
AGED ABOUT 38 YEARS
PROPRIETOR: SAI CONSTRUCTION
MARUTHI COMPLEX, KUMBER PET
(BEHIND ANJANEYA TEMPLE)
BANGALORE 560 002
                                           ... RESPONDENT

 (BY SRI D. NAGARAJA REDDY, ADVOCATE, AMICUS CURIAE)


       THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 R/W 401 CR.P.C PRAYING TO SET ASIDE THE
JUDGMENT IN CRL.A.NO.1125/2015 DATED 29.01.2018, ON THE
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FILE OF THE LXII ADDITIONAL CITY CIVIL AND SESSIONS
JUDGE, BANGALORE CITY IMPUGNED JUDGMENT AT 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. Heard the learned

counsel appearing for the petitioner and also the learned amicus

curiae appearing for the respondent.

2. The factual matrix of the case is that the revision

petitioner had requested the complainant for hand loan of

Rs.3,00,000/- to meet his urgent requirements and the

complainant believing his words, paid the loan of Rs.3,00,000/-

on 23.02.2013 and in discharge of legal liability, the petitioner

had issued a cheque dated 22.07.2013 and when the same was

presented, returned with an endorsement 'funds insufficient'

hence, legal notice was issued upon the petitioner herein and

reply was not given. The complainant in order to prove his case,

examined himself as PW1 and got marked the documents at

Ex.P1 to P6. Inspite of sufficient opportunity is given, PW1 was

not cross-examined and hence, cross-examination of PW1 was

taken as nil and on closure of complainant's evidence, this

petitioner was examined under Section 313 of Cr.P.C and he

denied the case of the complainant. Having heard the respective

counsel and also on perusal of the material on record, the Trial

Court convicted the petitioner herein and sentenced to pay a fine

of Rs.3,00,000/- within 30 days, in default, he shall undergo

simple imprisonment for a period of one year. The said order

had been challenged before the Appellate Court in

Crl.A.No.1125/2015 and the Appellate Court also on re-

appreciation of material available on record dismissed the

appeal. Hence, the revision petition is filed before the Court.

3. The main contention of the learned counsel for the

petitioner is that no opportunity was given to the petitioner to

cross-examine PW1 and also the petitioner could not able to lead

any defence evidence before the Trial Court and the counsel

would submit that within a period of one month from the date of

evidence of PW1, the cross-examination of PW1 was taken as nil

and hence, the matter has to be remanded to the Trial Court to

cross-examine PW1 with a time bound.

4. Per contra, the learned amicus curiae would contend

that PW1 was examined in the month of April 2015 and inspite of

several opportunity was given for cross-examination PW1 and

cost was also imposed, inspite of it, this petitioner has not cross-

examined PW1 hence, it was taken as nil on 16.07.2015 and

thereafter the petitioner also examined under Section 313 of

Cr.P.C and no effort was made even for filing the application for

recalling PW1 for cross-examination and also not led defence

evidence and the evidence of the complainant was unchallenged

and now the petitioner cannot find fault with the findings of the

Trial Court as well as the Appellate Court and the question of

remanding the matter does not arise. It is a matter of the year

2014 and transaction was taken place in the year 2013.

5. Having heard the respective counsel appearing for

the parties and also on perusal of the material on record it is

clear that PW1 was not cross-examined, inspite of service of

notice, the petitioner had not replied to the same and not led

any defence evidence and when this petitioner was examined

under Section 313 of Cr.P.C, he was only denied the case of the

complainant but not rebutted the case of the complainant either

by cross-examining PW1 or adducing any defence evidence.

When such being the factual aspects of the case, it is not a fit

case to admit the matter.

6. The contention of the petitioner's counsel is that no

opportunity was given cannot be accepted since several

opportunity was given and inspite of that, the petitioner has not

made use of the said opportunity and hence, the question of

remanding the matter does not arise. This is a matter of the

year 2014 and almost eight years has been lapsed and hence,

there is no question of remanding the matter and this petitioner

is not liable to seek for an order of remand.

7. The Apex Court in the judgment of INDIAN BANK

ASSOCIATION vs UNION OF INDIA reported in 2014(5) SCC

590 has categorically stated that there is no room of lethargic

approach by any litigant, particularly, when the matter involved

is the offence under Section 138 of the N.I.Act. when PW1 was

not cross-examined and not led any defence evidence and the

evidence of PW1 was also unchallenged, the question of revision

does not arise. Hence, the revision petition is dismissed.

8. Registry is directed to pay the amicus curiae charges

in favour of the amicus curiae.

Sd/-

JUDGE

SN