Karnataka High Court

Sri M N Krishnappa vs R Venkatesh on 20 December, 2023

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                                                           NC: 2023:KHC:46526
                                                     CRL.A No. 1071 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. 1071 OF 2015
                   BETWEEN:
                   SRI. M.N. KRISHNAPPA,
                   S/O MUNIYAPPA,
                   AGED ABOUT 65 YEARS,
                   OCCUPATION: EMPLOYEE OF MYSORE
                   LAMPS WORKS PVT. LTD.,
                   NO.109, 1ST FLOOR, 2ND CROSS,
                   1ST MAIN ROAD, VIDYANAGAR,
                   P & T COLONY, KURUBARAHALLI,
                   BANGALORE - 32.
                                                                 ...APPELLANT
                   (BY SRI. N. MAHALINGA BHAT, ADVOCATE)

                   AND:
                   R. VENKATESH,
                   S/O LATE K.P. RATHNAM SHETTY,
Digitally signed
by SANDHYA S       AGED ABOUT 60 YEARS,
Location: High     OCCUPATION: TEXTILES,
Court of
Karnataka          BUSINESS NO.6, 5TH CROSS,
                   MALLESHWARAM, BANGALORE - 560 003.
                                                               ...RESPONDENT
                   (BY SRI. M.R. BALAKRISHNA, ADVOCATE)

                        THIS CRL.A IS FILED U/S.378(4) OF CR.P.C PRAYING TO
                   SET ASIDE THE JUDGMENT AND ORDER DATED 24.07.2015
                   PASSED BY THE COURT OF THE XXII ADDL. CHIEF
                   METROPOLITAN MAGISTRATE, BENGALURU CITY IN C.C.No.
                   21231/2014 - ACQUITTING THE RESPONDENT / ACCUSED FOR
                   THE OFFENCE P/U/S 138 OF N.I ACT.
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                                                NC: 2023:KHC:46526
                                           CRL.A No. 1071 of 2015




        THIS APPEAL, COMING ON FOR HEARING, THIS DAY, THE

COURT DELIVERED THE FOLLOWING:

                             JUDGMENT

The appellant/complainant has preferred this appeal

against the judgment of acquittal passed by the XXII Additional

Chief Metropolitan Magistrate, Bangalore City in

CC.No.21231/2014 dated 24.07.2015, (for short hereinafter

referred to as 'Trial Court').

2. The rank of the parties in this appeal are referred to

as per their status before the trial Court.

3. Brief facts of the complaint is that the accused has

borrowed a sum of Rs.3,40,000/- from the complainant on

14.03.2014 for repayment of the portion of which he had

issued four cheques bearing No.151509, 450786, 305738,

450799 dated 17.04.2014 for total sum of Rs.2,45,000/- drawn

on Indian Bank, Malleshwaram, Branch. For the balance

amount of Rs.95,000/- accused issued a separate receipt with

an assurance to pay the amount in future date. The accused

assured the complainant that, he had a sufficient amount in his

bank account. As per the advise of the accused, complainant

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presented the above said cheques for encashment on

17.04.2014, the same was returned with an endorsement

'Funds Insufficient' on 03.05.2014. Complainant had issued a

notice on 20.05.2014 by registered post, calling upon the

accused to pay the cheque amount but the accused did not pay

the cheque amount. Hence, the complainant has filed a

complaint under Section 138 of the Negotiable Instruments Act,

1881.

4. After taking cognizance the case was registered

against the accused in CC.No.21331/2014, summons was

issued to the accused, in response to summons accused

appeared before the trial Court and enlarged on bail. Substance

of plea was recorded, accused pleaded not guilty and claimed

to be tried.

5. To prove the guilt of the accused,

M.N.Krishnappa/complainant examined as PW1, 14 documents

were marked as Ex.P1 to Ex.P14. On closure of complainant

side evidence, the statement under Section 313 of Cr.P.C was

recorded. Accused has totally denied the evidence of PW1 but

he has adduced his evidence as DW1. On the date of

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examination of DW1 the complainant counsel remained absent.

Hence, cross examination of DW1 is taken as NIL and then the

case was posted for arguments. Both parties have filed their

written arguments. The trial Court has acquitted the accused.

Being aggrieved by the impugned judgment of acquittal the

complainant/appellant has preferred this appeal.

6. Learned counsel for the appellant has submitted his

arguments that the trial Court has not properly appreciated the

evidence on record in accordance with law and facts and

ignored the provisions of Section 139 of the Negotiable

Instruments Act, 1881.

7. The trial Court erred in holding that, despite of

sufficient opportunity given for the counsel for the appellant/

complainant but, has not chosen to cross-examine DW1, as on

the date of evidence of DW1. Counsel for the complainant was

not provided an opportunity to cross-examine the DW1 and

also sought for to permit the complainant to adduce additional

evidence to substantiate his case. Hence, the learned counsel

for the appellant sought for remand the case to the trial Court

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by providing opportunity to the complainant to cross-examine

DW1.

8. Learned counsel for the respondent is present and

submitted his arguments that the trial Court has properly

appreciated the evidence on record in accordance with law and

facts, that there are no grounds to interfere with the impugned

judgment of acquittal, on all these grounds sought for dismissal

of the appeal.

9. Having heard the arguments of learned counsel for

the appellant and perusal of records, the following points would

arise for the consideration:

1) Whether the appellant/complainant has made out a

grounds to remand the case to the trial Court.

2) What Order?

My answer to the above points are as under:

       Point No.(1):    In the Affirmative,


       Point No.(2):    As per final order.

10. I have carefully examined the materials placed

before this Court. The complainant has filed a complaint under

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Section 138 of the Negotiable Instruments Act, 1881 for

dishonour of cheques bearing No.151509, 450786, 305738,

450799 dated 17.04.2014 for a total sum of Rs.2,45,000/-

drawn on Indian Bank, Malleshwaram Branch, Bangalore. To

substantiate the case of the complaint, the complainant himself

examined as PW1, 14 documents were marked as Ex.P1 to

Ex.P14. Thereafter, the accused has adduced his evidence as

DW1. The trial Court has recorded the evidence of DW1 on

01.07.2015, on that day the complainant and his counsel

remained absent. Hence, the trial Court has passed an order

that the cross-examination of complainant is taken as NIL. In

the impugned judgment in page No.7, the trial Court has

observed as under:

" As per the cross-examination of PW1 the accused lead his side defence evidence as DW1, on oath in which he has stated that, the alleged cheque in question are issued to this complainant for the purpose of security at the time of chits transaction with the complainant etc. The complainant counsel did not cross-examined the DW1 inspite of sufficient opportunity has been given. Hence, the legal presumption can be drawn in favour of accused to show that, the accused had given a rebuttal evidence to the case of the complainant."

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11. Since, the evidence of DW1 remains unchallenged.

The trial Court has accepted the evidence of DW1 and acquitted

the accused. Considering the submission of learned counsel for

the appellant, it is just and proper to provide one more

opportunity to the complainant to adduce his additional

evidence, if any and also to cross-examine DW1. Accordingly I

answer point No.1 in affirmative.

Regarding Point No.2:

12. For the aforesaid reasons and discussion, I proceed

to pass the following:

ORDER

1. Appeal allowed.

2. The judgment passed by the XXII Additional

Chief Metropolitan Magistrate, Bangalore City

in CC.No.21231/2014 dated 24.07.2015 is

set-aside;

3. The matter is remitted back to the trial Court

with a direction to provide opportunity to the

complainant to adduce his additional

evidence, if any and also cross-examine

DW1.

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4. Accused is also permitted to adduce his

additional evidence, if any.

5. Both parties are directed to appear before

the trial Court without seeking any further

notice on 17.01.2024, before the trial

Court.

6. The trial Court is directed to dispose of the

case within six months from the date of

appearance of parties as the matter is of the

year 2014.

7. Registry is directed to send the copy of this