Karnataka High Court
Sri Dharmichand Jain vs Sri Zabee on 20 December, 2023
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CRL.A No. 780 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE G BASAVARAJA
CRIMINAL APPEAL NO. 780 OF 2015
BETWEEN:
SRI DHARMICHAND JAIN
S/O SRI NEMICHAND JAIN
AGED ABOUT 55 YEARS
R/AT NO.2, II MAIN ROAD
SHESHADRIPURAM
BENGALURU-560020
...APPELLANT
(BY SRI. SATEESH B.,ADVOCATE)
AND:
SRI ZABEE
S/O LATE AHAMED
AGED ABOUT 48 YEARS
RESIDING AT M/S CAR LIFE
NO.6, THIMMAIAH ROAD
Digitally signed BENGALURU-560001
by SANDHYA S ...RESPONDENT
Location: High (BY SRI. .,ADVOCATE)
Court of
Karnataka
THIS CRL.A. FILED U/S 378(4) CR.P.C BY THE ADV. FOR
THE APPELLANT PRAYING THAT THIS HON'BLE COURT MAY BE
PLEASED TO SET ASIDE THE ORDER DATED 06.06.2015
PASSED BY THE 15TH A.C.M.M., BANGALORE IN
C.C.NO.15433/2014 - ACQUITTING THE
RESPONDENT/ACCUSED FOR THE OFFENCE PUNISHABLE
UNDER SECTION 138 OF N.I. ACT.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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CRL.A No. 780 of 2015
JUDGMENT
The appellant/complainant has preferred this appeal
against the judgment of acquittal passed by the XV Addl.
Chief Metropolitan Magistrate, Bangalore City in
C.C.No.15433/2014 dated 06.06.2015.
2. The rank of the parties in this appeal are
referred in the same rank as referred by the trial Court.
3. The case of the complainant is that:
The complainant and accused were friends and
known to each other. Accused had approached the
complainant for a hand loan of Rs.2,50,000/- and assured
to repay the said amount within 12 months. Accordingly,
a sum of Rs.2,50,000/- was paid to the accused in the
month October 2012. As a security to the said loan,
accused had handed over original documents pertaining to
the vehicle bearing No.KA-04-Z-7299. He had also agreed
to repay the loan amount with interest at 18% p.a. After
three months, complainant approached the accused
demanding repayment of the loan amount. But on one
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pretext or the other, accused postponed the payment and
finally issued two cheques for a sum of Rs.1,50,000/- and
Rs.1,00,000/- on 01.03.2013 and 04.03.2013 respectively
drawn on Allahabad Bank, Taskar Town Branch,
Bangalore. When the cheques were presented through
Canara Bank, Sheshadripuram Branch, Bangalore, the
same were returned unpaid for the reason 'funds
insufficient'. In this regard, bank had issued a memo
dated 06.03.2013. Notice was issued on 19.03.2013,
which was duly served on the accused. On 25.03.2013,
accused had issued untenable reply to the notice. Hence,
complainant filed a complaint under Section 138 of N.I.
Act.
4. After taking cognizance, the trial Court
registered a case in C.C.No.15433/2014. Summons was
issued to the accused. In response to summons, accused
appeared before the trial Court and was enlarged on bail.
Substance of accusation was explained to the accused.
Accused pleaded not guilty and claimed to be tried.
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5. To prove the case of the complainant,
complainant himself was examined as PW.1 and marked
seven documents as Exs.P1 to P7. PW.1 was not appeared
for further cross-examination of PW.1, hence, trial Court
closed the evidence of PW.1 and recorded the statement of
accused under Section 313 of Cr.P.C. The accused had
totally denied the evidence of PW.1 and adduced his
evidence as DW.1, but the trial Court did not give
opportunity to DW.1 for cross-examination. Even the trial
Court has not provided an opportunity to the complainant
to submit his arguments and pronounced the impugned
judgment of acquittal.
6. A perusal of evidence of PW.1 it is crystal clear
that the trial Court has received the evidence of PW.1 by
way of affidavit instead of examination-in-chief on
20.01.2015. On that day, at the request of accused
counsel, evidence of PW.1 was deferred for cross-
examination. On 02.03.2015 PW.1 was partly cross-
examined and then at the request of accused counsel,
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further cross-examination was deferred and case was
posted to 12.03.2015. On that day, both PW.1 and
accused were absent. An exemption application was filed
on behalf of accused, same was allowed. Then, case was
adjourned to 17.03.2015. On 17.03.2015, the Presiding
Officer was on leave, hence, case was adjourned to
27.03.2015. On 27.03.2015, PW.1 was absent, accused
was present, then case was posted to 07.04.2015. On
07.04.2015, PW.1 was absent, accused was present, then
case was adjourned to 17.04.2015. On 17.04.2015, PW.1
was absent, accused was present, hence, the trial Court
posted the case for statement under Section 313 of
Cr.P.C., then case was posted to 20.04.2015. On that day,
accused was present and statement of accused under
Section 313 of Cr.P.C. was recorded. Then case was
posted to 25.04.2015. On that day, accused was absent,
then case was posted to 30.04.2015. On 30.04.2015,
examination-in-chief of DW.1 was recorded and then case
was posted to cross of DW.1 on 08.05.2015. On
08.05.2015, accused was present, complainant was
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absent. Hence, cross of DW.1 was taken as nil and case
was posted for arguments on 02.06.2015. On 02.06.2015
accused was present, complainant absent and arguments
on behalf of complainant's side not addressed and accused
side arguments was heard and then on 05.06.2015, the
trial Court acquitted the accused.
7. A careful examination of the order sheet
maintained by the trial Court, it is crystal clear that the
trial Court has not given sufficient opportunity to the
accused to cross-examine PW.1 when PW.1 has not
appeared before the trial Court for further cross-
examination. The trial Court could have dismissed the
case for non-prosecution, instead of that, it has closed the
evidence of PW.1 without assigning any reason and
recorded the statement of accused under Section 313 of
Cr.P.C. Even after adducing the evidence of DW.1, the
trial Court has not provided an opportunity to the
complainant to cross-examine DW.1. In the memorandum
of appeal, the complainant/appellant has clearly stated
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that the non-appearance of the complainant before the
trial Court is due to bonafide reason. The complainant had
lost the track of the matter and wrongly noted the date of
hearing and thereafter, he went abroad as preplanned.,
hence, he could not appear before the trial Court.
8. Considering the facts and circumstances of the
case, it is just and proper to provide one more opportunity
to the complainant to adduce his evidence and also to
cross-examine DW.1. Hence, I proceed to pass the
following:
ORDER
1. The appeal is allowed;
2. The impugned judgment of acquittal passed
by the XV Addl. Chief Metropolitan
Magistrate, Bangalore City in
C.C.No.15433/2014 dated 06.06.2015 is
hereby set aside;
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3. The matter is remitted back to the trial Court
with a direction to provide an opportunity to
both the parties to adduce their evidence;
4. The complainant/appellant shall appear
before the trial Court for further cross-
examination. The trial Court is also directed
to provide an opportunity to the complainant
to cross-examine DW.1;
5. The trial Court is directed to issue Court
notice to both parties to appear before the
Court and after appearance of both the
parties, the trial Court shall proceed with the
case 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
