Karnataka High Court
Shanmugam vs Sri C N Kempegowda on 5 December, 2023
-1-
CRL.RP No. 1195 of 2019
NC: 2023:KHC:43785
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MS JUSTICE J.M.KHAZI
CRIMINAL REVISION PETITION NO.1195 OF 2019
BETWEEN:
SHANMUGAM
S/O GOVINDARAJU
AGED ABOUT 39 YEARS
R/A NO.288/1
VIDYANAGARA CROSS
BETTAHALASUR POST
JALA HOBLI
BENGALURU NORTH TALUK
BENGALURU - 560 001
...PETITIONER
(BY SRI. GANESHA G, ADVOCATE)
AND:
SRI C N KEMPEGOWDA
S/O LATE NANJUNDAPPA
Digitally signed AGED ABOUT 32 YEARS
by MADHURI S
R/AT CHIKKAJALA VILLAGE AND POST
Location: High
Court of JALA HOBLI
Karnataka BENGALURU NORTH TALUK
BENGALURU - 560 001
...RESPONDENT
(RESPONDENT - SERVED)
THIS CRL.RP IS FILED UNDER SECTION 397 R/W 401 OF
CR.P.C PRAYING TO ALLOW THIS CRIMINAL REVISION
PETITION BY SETTING ASIDE THE JUDGMENTS PASSED BY THE
HON'BLE LEARNED SMALL CAUSES AND XXVI A.C.M.M AT
BENGALURU, IN C.C.NO.11501/2016, ITS ORDER DATED 22ND
DAY OF OCTOBER 2018 CONVICTING THE APPELLANT/
ACCUSED AND SENTENCING HIM TO PAY A FINE OF
-2-
CRL.RP No. 1195 of 2019
NC: 2023:KHC:43785
RS.10,50,000/- (RUPEES TEN LAKHS FIFTY THOUSAND ONLY)
INCLUDED RS.10,000/- (RUPEES TEN THOUSAND ONLY)
ADDITIONAL FINE AMOUNT AND IN DEFAULT OF FINE
PAYMENT TO UNDERGO A SIMPLE IMPRISONMENT FOR A
PERIOD OF SIX MONTHS, THEREBY CONFIRMING THE
JUDGMENT PASSED BY THE HON'BLE LXV ADDL. CITY CIVIL
AND SESSIONS JUDGE AT BENGALURU IN CRIMINAL APPEAL
NO.2345/2018, VIDE ORDER DATED 7TH DAY OF JUNE 2019,
AND REMAND BACK THE MATTER AFRESH TRAIL BEFORE THE
TRAIL COURT AND PASS SUCH OTHER ORDER/S AS THIS
HON'BLE COURT DEEMS FIT IN THE CIRCUMSTANCES OF THE
CASE, IN THE INTEREST OF JUSTICE AND EQUITY AND GRANT
SUCH OTHER RELIEFS DEEMED FIT TO GRANT IN THE
CIRCUMSTANCES OF CASE, INCLUDING COSTS, IN THE
INTEREST OF JUSTICE AND EQUITY.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
This Criminal Revision Petition filed under Section
397 read with 401 of Cr.P.C is by accused challenging his
conviction and sentence for the offence punishable under
Section 138 of Negotiable Instruments Act, 1881 by the
trial Court, which came to be confirmed by the Sessions
Court by dismissing the appeal filed by petitioner/accused.
2. For the sake of convenience, the parties are
referred to by their rank before the trial Court.
NC: 2023:KHC:43785
3. Complainant filed a private complaint against
the accused alleging that accused borrowed hand loan of
Rs.10,00,000/- in the month of August 2015 and after
several request and demand, issued cheque dated
26.02.2016 for Rs.10,00,000/-. However, when presented
for realization to the Bank, it was returned dishonoured on
the ground "account closed". After issuing legal notice,
complaint was filed.
4. Accused appeared and contested the matter.
5. To prove his case, complainant examined
himself as PW-1 and relied upon Exs.P-1 to 5.
6. Vide the impugned judgment and order, the
trial Court convicted the accused and sentenced him to
pay fine of Rs.10,50,000/- with default sentence of
imprisonment.
7. The appeal filed by the accused came to be
dismissed, against which this petition is filed.
NC: 2023:KHC:43785
8. During the course of arguments, learned
counsel for accused submitted that accused was not
provided with reasonable opportunity to cross-examine the
complainant and also to lead defence evidence. He further
submitted that subsequent to the disposal of the complaint
before the trial Court, on the advise of relatives and
friends, matter is settled and accused has paid in all
Rs.4,00,000/- i.e., Rs.1,00,000/- is received by
complainant on 31.03.2019 , Rs.2,00,000/- is credited to
the account of complainant on 06.05.2019 and balance of
Rs.1,00,000/- is credited to the account of complainant on
26.06.2019. However, complainant is not coming forward
to record compromise before the Court.
9. To evidence the fact that he has entered into
the compromise with the complainant, the learned counsel
for the accused has produced a receipt and also extract of
account of accused to show that Rs.3,00,000/- is credited
to the account of complainant.
NC: 2023:KHC:43785
10. Though in the present case, notice is duly
served on respondent, he has not appeared before the
Court.
11. Having regard to the fact that at the trial,
accused is not provided with reasonable opportunity to
defend himself and also in the light of subsequent
development, this Court is of the considered opinion that
matter requires reconsideration by the trial Court. The trial
Court shall secure the presence of complainant and
provide opportunity to the accused to further cross-
examine the complainant and also to lead defence
evidence. Of course, the parties are at liberty to
compromise the matter, if so advised and accordingly, the
following:
ORDER
(i) Petition filed under Section 397 r/w 401
Cr.P.C is allowed.
NC: 2023:KHC:43785
(ii) The impugned judgment and order of the
trial Court dated 22.10.2018 in
C.C.No.11501/2016 on the file of the Small
Causes and XXVI A.C.M.M., Bengaluru and
judgment and order dated 07.06.2019 in
Crl.A.No.2345/2018 on the file of the LXV
Additional City Civil and Sessions Judge,
Bengaluru are set aside.
iii) The matter is remanded to the trial Court
for disposal in accordance with law after
providing opportunity to the
petitioner/accused to further cross-examine
the complainant and also to lead defence
evidence if any. The complainant is also at
liberty to lead further evidence if any.
iv) The petitioner/accused is directed to appear
before the trial Court on 19.12.2023.
v) Registry is directed to send a copy of this
order to the trial Court through e-mail.
vi) Registry is directed to send back the trial
Court records forthwith.
Sd/-
JUDGE
MDS
