Sri Nagaraj B vs Sri Satish R
2022 Latest Caselaw 12984 Kant

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    IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 14TH DAY OF NOVEMBER, 2022

                        BEFORE

           THE HON'BLE MS.JUSTICE J.M.KHAZI

          CRIMINAL APPEAL NO.1270 OF 2019

BETWEEN:

SRI NAGARAJ B
S/O LATE BOREGOWDA
AGED ABOUT 38 YEARS
R/AT NO.25, 7TH MAIN,
7TH CROSS, 4TH BLOCK
NANDINI LAYOUT
BENGALURU - 560 096.
                              ...COMPLAINANT/APPELLANT

(BY SRI. LINGARAJ M, ADVOCATE)

AND:

SRI SATISH R
S/O RANGANATH
AGED ABOUT 27 YEARS
R/AT NO.1, JODISRIRANGAPURA
HUNAVINAD POST
HOSADURGA TALUK,
CHITRADURGA - 577 527.

                                 ...ACCUSED/RESPONDENT

(BY SRI. MANJUNATH N D, ADVOCATE)

     THIS APPEAL IS FILED UNDER SECTION 378(4) OF THE
CODE OF CRIMINAL PROCEDURE PRAYING TO SET ASIDE THE
JUDGMENT     AND    ORDER    DATED    15.04.2019   IN
C.C.NO.2127/2017 ON THE FILE OF THE VI ADDL. SMALL
CAUSES JUDGE AND XXXI ADDL. CHIEF METROPOLITAN
MAGISTRATE, BENGALURU CITY, AND CONVICT THE
RESPONDENT/ACCUSED FOR THE OFFENCE PUNISHABLE
UNDER SEC 138 OF THE N I ACT AND AWARD THE SENTENCE
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AND COMPENSATION AS THIS HON'BLE COURT DEEMS FIT IN
THE ENDS OF JUSTICE.

     THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:


                          JUDGMENT

This appeal is by complainant challenging the

dismissal of the complaint filed by him for the offence

punishable under Section 138 of Negotiable Instruments

Act and thereby acquitting the respondent/accused.

2. For the sake of convenience the parties are

referred to by their rank before the trial Court.

3. Complainant filed complaint under Section 200

of Cr.P.C alleging that he and accused are well

acquainted and on 13.12.2015, accused has borrowed a

sum of Rs.9,50,000/- to meet his domestic problems and

after repeated request and demand, he issued a cheque

dated 11.11.2016 for a sum of Rs.9,50,000/- and when it

was presented for encashment, it was dishonoured on

the ground of insufficient funds. After issue of legal

notice, he filed this complaint.

4. Since accused pleaded not guilty, complainant

examined himself as PW-1 and got marked Exhibits P-1

to P-4. After noting that inspite of granting several

adjournments, PW-1 has not tendered himself for cross-

examination, the trial Court has closed the complainant's

evidence and after recording the evidence of accused, it

has dismissed the complaint.

5. As evident from the order sheet, on

19.01.2019, accused has appeared and secured bail. On

the same day, he has filed application to permit him to

cross-examine PW-1, which came to be allowed and the

case was posted to 31.01.2019, 22.02.2019, 16.03.2019

and 08.04.2019. On that day, i.e., on 08.04.2019, after

noting that PW-1 has not tendered himself for cross-

examination, closed complainant's evidence. On the

same day, he has recorded the statement of accused

under Section 313 of Cr.P.C and also recorded defence

evidence and posted the case for judgment.

6. The manner in which the case was closed on

the same day by closing the evidence of complainant's

side recording the statement of accused under Section

313 of Cr.P.C and also recording the evidence of accused

goes to show that complainant has not been provided

with reasonable opportunity. When on 08.04.2019,

complainant and his counsel were absent, they had no

occasion to know the developments that took place and

file application to recall PW-1 as well as to provide

opportunity to cross-examine the accused. In a very

hurried manner, the trial Court has proceeded to dispose

of the matter. In the circumstances, the complainant

requires another opportunity to tender himself for cross-

examination and also to lead to further evidence, if he so

desires.

7. No prejudice would be caused to the accused

as he would get opportunity to cross-examine the

complainant and his witnesses. Accordingly, I proceed to

pass the following:

ORDER

(i) Appeal is allowed. The impugned judgment

and order dated 15.04.2019 is set aside.

Complaint is restored to the file.

(ii) Both Complainant and accused are directed to

appear before the trial Court on 12.12.2022

without waiting for notice from it.

(iii) The trial Court is directed to proceed with the

matter from the stage of cross-examination of

PW-1 after providing reasonable opportunity

to both parties.

Sd/-

JUDGE

MDS