Karnataka High Court
Smt. R. Joshpine Jayaraj vs Sri. J.X. Selwin on 12 December, 2023
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NC: 2023:KHC:45090
CRL.A No. 759 of 2016
C/W CRL.A No. 757 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE G BASAVARAJA
CRIMINAL APPEAL NO. 759 OF 2016
C/W
CRIMINAL APPEAL NO. 757 OF 2016
In Crl.A.No.759/2016
BETWEEN:
SMT. R. JOSHPINE JAYARAJ,
WIFE OF JAYARAJ,
AGED ABOUT 51 YEARS,
R/AT NO.21, B TYPE HOUSE,
ROBERTSON ROAD, FRASER TOWN,
BENGALURU-560 005.
...APPELLANT
(BY SRI. NAGENDRA A., ADVOCATE FOR
SRI. JANARDHANA G., ADVOCATE)
AND:
Digitally
signed by
SANDHYA S SRI. J.X. SELWIN,
Location: High SON OF J.X.XAVIER,
Court of
Karnataka AGED ABOUT 45 YEARS,
R/AT NO.18, I CROSS, 'A' STREET,
MILLERS ROAD, VSANTHNAGAR,
BENGALURU-560 052.
WORKING AT:
TRAFFIC SUPERINTENDENT,
EMPLOYMENT NO.561045,
C/O THE MANAGER (PERSONAL),
INDIAN AIRLINES LTD.,
H.A.L. AIRPORT,
BENGALURU-560 017.
...RESPONDENT
(BY SRI. SPOORTHY HEGDE NAGARAJA, ADVOCATE)
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CRL.A No. 759 of 2016
C/W CRL.A No. 757 of 2016
THIS CRL.A. FILED U/S 378(4) CR.P.C. PRAYING TO SET
ASIDE THE JUDGMENT DATED 29.01.2015 PASSED BY THE V
ADDL. SMALL CAUSES JUDGE AND 24th ACMM, COURT OF
SMALL CAUSES, MAYO HALL UNIT, BANGALORE (SCCH-20) IN
C.C.27650/2009-ACQUITTING THE RESPONDENT/ACCUSED
FOR THE OFFENCE PUNISHABLE UNDER SECTION 138 OF N.I
ACT.
In Crl.A.No.757/2016
BETWEEN:
SMT. R. JOSHPINE JAYARAJ,
WIFE OF JAYARAJ,
AGED ABOUT 51 YEARS,
R/AT NO.21, B TYPE HOUSE,
ROBERTSON ROAD, FRASER TOWN,
BENGALURU-560 005.
...APPELLANT
(BY SRI. NAGENDRA A., ADVOCATE FOR
SRI. JANARDHANA G., ADVOCATE)
AND:
SRI. J.X. SELWIN,
SON OF J.X.XAVIER,
AGED ABOUT 45 YEARS,
R/AT NO.18, I CROSS, 'A' STREET,
MILLERS ROAD, VSANTHNAGAR,
BENGALURU-560 052.
WORKING AT:
TRAFFIC SUPERINTENDENT,
EMPLOYMENT NO.561045,
C/O THE MANAGER (PERSONAL),
INDIAN AIRLINES LTD.,
H.A.L. AIRPORT,
BENGALURU-560 017.
...RESPONDENT
(BY SRI. SPOORTHY HEGDE NAGARAJA., ADVOCATE)
THIS CRL.A. FILED U/S.378(4) CR.P.C. PRAYING TO SET
ASIDE THE JUDGMENT DATED 29.01.2015 PASSED BY THE V
ADDL. SMALL CAUSES JUDGE AND 24TH ACMM COURT OF
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CRL.A No. 759 of 2016
C/W CRL.A No. 757 of 2016
SMALL CAUSES, MAYO HALL UNIT, BENGALURU (SCCH-20) IN
C.C.NO.27645/2009-ACQUITTING THE RESPONDENT/ACCUSED
FOR THE OFFENCE PUNISHABLE UNDER SECTION 138 OF
N.I.ACT.
THESE APPEALS, COMING ON FOR ADMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The appellant/complainant has preferred these
appeals against the judgment of acquittal passed by the V
Addl. Small Causes Judge & XXIV A.C.M.M., Court of Small
Causes, Mayo Hall Unit, Bangalore (SCCH-20) in
C.C.Nos.27650/2009 and 27645/2009 respectively, dated
29.01.2015 (for short hereinafter referred to as 'trial
Court').
2. The rank of the parties in this appeal are
referred in the same rank as referred by the trial Court.
3. Brief facts of the complaint are that:
The complainant and accused were known to each
other for the last 4 to 5 years. Accused had approached
the complainant in the month of October 2005 for a hand
loan of Rs.1,50,000/- to meet his domestic commitments.
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Complainant is a retired employee of HMT Ltd., Bangalore
and had retirement amount at that point of time.
Believing the words and having confidence on the accused,
complainant paid an amount of Rs.1,50,000/- as loan to
the accused in the month of October 2005 and the
accused agreed to repay the same within six months, but
he failed to repay the same as agreed. After request and
demand made by the complainant in the month of April
2008, the accused had issued two cheques bearing
No.648447 for Rs.68,000/- dated 07.05.2008 and
No.648449 for Rs.70,000/- dated 22.08.2008 towards part
payment and promised that cheques be honoured on its
presentation. On presentation of cheques bearing
Nos.648447 and 648449 for Rs.68,000/- and Rs.70,000/-
respectively, for encashment, the same were dishonoured
on 05.09.2008 and 22.08.2008 with an endorsement
'funds insufficient'. Then, the complainant got issued legal
notices to the accused on 12.09.2008 and on 04.09.2008
demanding accused to pay the cheques amount of
Rs.68,000/- and Rs.70,000/- respectively. Accused
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refused to receive the legal notices. Hence, complainant
lodged a complaint for the commission of offence
punishable under Section 138 of N.I. Act.
4. After taking cognizance, the trial Court
registered the cases in C.C.Nos.27650/2009 and
27645/2009 and summons was issued to the accused, but
accused did not appear before the trial Court. Hence, NBW
was issued. After issuance of NBW, accused appeared
before the trial Court and was enlarged on bail. Substance
of accusation was recorded. Accused pleaded not guilty
and claimed to be tried.
5. To prove the case of the complainant, the
Power of Attorney Holder of the complainant was
examined as PW.1 and marked eight documents as Exs.P1
to P8 in C.C.No.27650/2009 and marked six documents as
Exs.P1 to P6 in C.C.No.27645/2009. On closure of
complainant's side evidence, statement of accused under
Section 313 of Cr.P.C. was recorded. Accused had denied
the evidence of PW.1 and adduced his evidence as DW.1
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by way of affidavit. On hearing the arguments, the trial
Court acquitted the accused. Being aggrieved by the
impugned judgments of acquittal, the complainant has
preferred these appeals.
6. Learned counsel for the complainant/appellant
has submitted his arguments that the trial Court has not
properly appreciated the evidence on record in accordance
with law and facts and has also ignored the provisions of
Sections 118 and 139 of N.I. Act. On these grounds, he
sought for allow these appeals.
7. Learned counsel for the complainant/appellant
further submitted his arguments that the trial Court did
not provide an opportunity to the complainant to adduce
his further evidence and the application filed by the
complainant under Section 311 of Cr.P.C. was also
rejected on 06.06.2014. Complainant also filed an
application under Section 311 of Cr.P.C. to recall DW.1 for
further cross-examination, same was also rejected by the
trial Court on 20.12.2014. Even the trial Court has
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rejected the prayer of the complainant to submit his
arguments on 07.01.2015. Counsel for the accused also
not submitted any arguments on his behalf. However, the
trial Court has observed in the impugned judgment that
the Court has heard the arguments on both sides, which is
apparently wrong. Same is contrary to the proceedings of
the order sheet maintained by the trial Court. On all these
grounds, he sought for remand the matters to the trial
Court to provide an opportunity to the complainant to
adduce his further evidence and also for further cross-
examination of DW.1.
8. Learned counsel for the respondent supports
the judgments of trial Court and submits that the same do
not call for interference in these appeals.
9. Having heard the arguments of learned counsel
for the appellant and on perusal of records, following
points would arise for my consideration:
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1. Whether the appellant/complainant has
made out a ground to interfere with the
impugned judgments of acquittal?
2. What order?
10. My answer to the above points is as under:
Point No.1 : In the affirmative;
Point No.2 : As per final order.
Regarding point No.1:
11. I have examined the materials placed before
this Court. The complainant filed a complaint under
Section 138 of N.I. Act for dishonour of cheque for
Rs.68,000/-. To prove the case of the complainant, the
complainant got examined her Power of Attorney Holder as
PW.1 and marked eight documents as Exs.P1 to P8 in
C.C.No.27650/2009 and six documents as Exs.P1 to P6 in
C.C.No.27645/2009 on her behalf. In this regard, the trial
Court had passed an order dated 07.11.2013 on a memo.
The trial Court allowed the said memo filed by the General
Power of Attorney Holder of the complainant and
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permitted him to adduce his evidence as PW.1. Perusal of
the order sheet dated 06.06.2014, reveals that the
complainant's counsel had filed an application under
Section 311 of Cr.P.C. to recall PW.1 for further chief
examination. Accused did not file any objection to the
said application, but he orally objected for the same. The
trial Court dismissed the said application filed by the
complainant and the matter was posted for cross-
examination of DW.1 to 17.06.2014. On 17.06.2014, case
was adjourned to 20.06.2014. On 20.06.2014, counsel for
the accused filed a memo stating that accused may be
permitted to withdraw the chief affidavit as he will give
oral evidence. The said memo was accepted by the trial
Court and the accused was permitted to lead oral evidence
and the case was posted to 09.07.2014. On 09.07.2014,
P.O. was on leave and case was adjourned to 30.07.2014.
On 30.07.2014, again case was adjourned to 02.08.2014.
On 02.08.2014, the trial Court passed order for cross-
examination of DW.1 and posted the matter to
12.08.2018. On 12.08.2014, P.O. was on leave and the
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matter was adjourned to 19.09.2014. On 19.09.2014,
again case was adjourned to 17.10.2014. On 17.10.2014
accused was absent and there was no representation for
accused. Hence, further evidence of defence was taken as
closed and NBW was issued to the accused. Thereafter,
NBW was recalled on 10.11.2014. On 20.12.2014,
complainant's counsel filed an application under Section
311 of Cr.P.C. to recall DW.1 for further cross-
examination. The same was rejected by the trial Court on
the ground that there are no reasonable grounds to recall
DW.1. Thereafter, case was posted to 05.01.2015. On
05.01.2015, again case was posted for arguments on
07.01.2015. Complainant's counsel sought time to submit
arguments. Same was rejected and the case was posted to
17.01.2015 for judgment. On that day, P.O. was on leave
and then case was adjourned to 22.01.2015 and then
posted to 29.01.2015. On 29.01.2015, the trial Court
passed the impugned judgment of acquittal.
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12. On perusal of the order sheet of the trial Court
dated 06.06.2014 in C.C.No.27650/2009, it is crystal clear
that the trial Court rejected the application filed by the
complainant to adduce his further evidence, but did not
assign any proper reasons to reject the said application.
The trial Court had also rejected the application under
Section 311 of Cr.P.C. filed by the complainant to recall
DW.1 for further cross-examination without assigning any
proper reason on 20.12.2014. The trial Court did not
provide an opportunity to the complainant to submit her
arguments. The trial Court also observed in the impugned
judgment that the General Power of Attorney is not
properly executed by the complainant in favour of PW.1.
In this regard, the complainant's counsel submits that if an
opportunity is given to the complainant, she will produce a
fresh power of attorney in accordance with law.
13. On careful examination of the order sheet of the
trial Court in C.C.No.27645/2009, the same reveals that
the complainant had filed an application under Section 311
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of Cr.P.C. to adduce his further evidence and also another
application under Section 311 of Cr.P.C. to cross examine
DW1. Both applications were rejected by the trial Court
without assigning any proper reasons for rejection. Even
the trial Court did not provide an opportunity to the
accused to file objections to the said applications. Only on
the basis of oral objection, trial Court had rejected the said
applications, which is not sustainable under law.
Considering the facts and circumstances of case, it is just
and proper to provide an opportunity to the complainant to
adduce his further evidence and also to cross-examine
DW.1 and also to produce fresh General Power of Attorney
in accordance with law.
14. On careful examination of the materials placed
before this court, this Court is of the opinion that the
matters are to be remanded back to the trial Court for
fresh disposal in accordance with law by providing an
opportunity to both the parties to adduce their evidence in
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accordance with law. Hence, I answer point No.1 in
affirmative.
Regarding point No.2:
15. For the aforesaid reasons and discussions, I
proceed to pass the following:
ORDER
1. The appeals are allowed;
2. The impugned judgments of acquittal dated
29.01.2015 passed by the V Addl. Small
Causes Judge & XXIV A.C.M.M., Court of
Small Causes, Mayo Hall Unit, Bangalore
(SCCH-20) in C.C.Nos.27650/2009 and
27645/2009 are hereby set aside;
3. The matters are remitted back to the trial
Court with a direction to provide an
opportunity to both the parties to adduce
their evidence in addition to the evidence
already adduce by them in accordance with
law;
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4. Both the parties are directed to appear
before the trial Court on 10.01.2024 without
seeking any further notice from the trial
Court;
5. The trial Court is also directed to provide an
opportunity to the complainant to produce
fresh General Power of Attorney in
accordance with law;
6. Registry is directed to send a copy of this
judgment along with trial Court records to
the concerned trial Court.
Sd/-
JUDGE
PGG
