Sri. B. Narayanaswamy vs Sri. V. Venugopal
2023 Latest Caselaw 1022 Kant

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                                                    CRL.RP No. 1228 of 2018




                   IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                      DATED THIS THE 18TH DAY OF JANUARY, 2023

                                          BEFORE

                          THE HON'BLE MR JUSTICE G BASAVARAJA

                    CRIMINAL REVISION PETITION NO. 1228 OF 2018

                   BETWEEN:
                   SRI. B. NARAYANASWAMY
                   S/O BYLAPPA,
                   AGED ABOUT 40 YEARS,
                   PROPRIETOR,
                   SRI NEELANJANAM SWAMY ENTERPRISES,
                   NO.11/2, 12TH 'A' MAIN ROAD,
                   SHIVANAGAR, RAJAJINGAR,
                   BENGALURU-560010.
                                                               ...PETITIONER
                   (BY SRI. PRABHUGOUD B TUMBIGI.,ADVOCATE)
                   AND:
                   SRI. V. VENUGOPAL
                   S/O.LATE VENKATESH,
                   AGED ABOUT 30 YEARS,
                   R/AT NO.76, 12TH MAIN ROAD,
                   SHIVANGAR, RAJAJINAGAR,
                   BENGALURU-560010.
Digitally signed
by RAMYA D
                                                              ...RESPONDENT
Location: High
Court of           (BY SRI. BHARGAV G, ADVOCATE)
Karnataka
                        THIS CRL.RP FILED U/S.397 R/W 401 CR.P.C., PRAYING
                   TO SET ASIDE THE JUDGMENT DATED 05.10.2018 PASSED BY
                   THE HON'BLE LXVII ADDITIONAL CITY CIVIL AND SESSIONS
                   JUDGE, BENGALURU IN CRIMINAL APPEAL NO.1132/2017 AND
                   ALSO BE PLEASED TO SET ASIDE THE JUDGMENT DATED
                   02.05.2017 PASSED BY THE LEARNED XVI ADDITIONAL CHIEF
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                                     CRL.RP No. 1228 of 2018




METROPOLITAN       MAGISTRATE,      BENGALURU   IN
C.C.NO.35237/2014 AND CONSEQUENTLY BE PLEASED TO
ACQUIT THE PETITIONER FROM THE ALLEGED OFFENCE.

     THIS CRL.RP, COMING ON FOR ADMISSION, THIS DAY,
THE COURT MADE THE FOLLOWING:

                          ORDER

The revision petitioner has filed this petition under

Section 397 r/w 401 of Cr.P.C. to set aside the judgment

dated 05.10.2018 passed by LXVII Addl. City Civil and

Sessions Judge, Bengaluru City, in Crl.A.No.1132/2017

and also to set aside the judgment of conviction and order

of sentence dated 02.05.2017 passed by XVI Addl. CMM,

Bengaluru City, in C.C.No.35237/2014 and consequently

acquit the accused.

2. The parties are referred to as per their ranks

before the trial court for the sake of convenience.

3. The brief facts of the case are that:

The accused borrowed the hand loan of Rs.15 lakhs

to meet his financial difficulties. The cash was arranged in

CRL.RP No. 1228 of 2018

the month of June 2012 and the accused assured to return

the amount within six months. Inspite of demand, the

accused has not paid the amount, but in turn issued the

cheque bearing NO.011673 dated 06.03.2013 for the said

amount drawn on ICICI Bank, Rajajinagar Branch,

Bengaluru. When the cheque was presented for

encashment same came to returned with an endorsement

that "Account Closed" on 15.03.2015. Thereafter,

complainant got issued a legal notice to the accused by

RPAD on 08.04.2013 calling upon him to repay the amount

of Rs.15 lakhs within 15 days from the date of receipt of

said legal notice and same was returned with an

endorsement 'door closed, intimation delivered' on

12.04.2013. Inspite of it, accused has neither replied nor

has he complied with the demand. Hence, complainant

has filed a complaint before the learned Magistrate.

4. After taking cognizance against the accused for

the alleged commission of offence punishable under

CRL.RP No. 1228 of 2018

Section 138 of Negotiable Instruments Act, 1881 (for short

'NI Act') case was registered in C.C.No.35237/2014 and in

pursuance of summons, accused appeared before the trial

court and enlarged on bail. The substance of the

accusation is recorded under Section 251 of Cr.P.C.

Accused has pleaded not guilty and claimed to be tried.

5. Accused has not cross examined PW-1-

complainant. Recording of statement under section 313 of

Cr.P.C. has been dispensed with by the trial court. On

hearing the arguments of complainant's counsel, trial court

has passed the judgment of conviction and order of

sentence. Being aggrieved by this judgment, accused has

preferred an appeal before the appellate court in

Crl.A.No.1132/2017 before the LXVII Addl. City Civil and

Sessions Judge, Bengaluru City (CCH-68). Said appeal

came to be dismissed on 05.10.2018. Being aggrieved by

this judgment, revision petitioner has preferred this

revision petition.

CRL.RP No. 1228 of 2018

6. Learned counsel for the petitioner has filed

I.A.No.2/2028 under Section 391, 401 r/w 482 of Cr.P.C.

along with the memorandum of revision petition seeking to

permit the petitioner to produce the documents shown in

the schedule of I.A.No.2 with affidavit of the accused.

7. Sri.Prabhugoud B. Tumbigi, learned counsel for

the accused has submitted his arguments that the

impugned judgments passed by the courts below are

illegal, arbitrary and without application of mind and

contrary to Sections 138 and 142 of NI Act. Trial court

has not given sufficient opportunity to petitioner to cross

examine the respondent to adduce the evidence of

accused under section 313 of Cr.P.C. and without hearing

the arguments of petitioner, trial court has passed the

impugned judgment, which is also confirmed by the

appellate court. Hence, impugned judgments passed by

both the courts are not sustainable under law.

CRL.RP No. 1228 of 2018

8. Further it is submitted that petitioner has filed

an application under section 391, 401 r/w 482 of Cr.P.C.

to permit the petitioner to produce this document shown in

the application, which are very necessary to prove the

defence of the accused. On all these grounds sought for

allowing this revision petition.

9. Sri.Bhargav G., learned counsel for the

respondent has submitted his arguments that trial court

has provided sufficient opportunity to the accused to cross

examine the PW-1. Though sufficient opportunity was

provided, intentionally accused has not appeared before

the court. Hence, impugned judgment passed by the trial

court is in accordance with law and there are no grounds

to interfere with the judgments of both the courts. On all

these grounds, sought for dismissal of the revision

petition.

10. Having regard to the facts and circumstances of

the case, following point would arise my consideration:

CRL.RP No. 1228 of 2018

(1) Whether impugned judgment passed by the trial court as well as appellate court suffers from legal infirmity, patent factual defects, error of jurisdiction or perversity and thus call for interference?

(2) Whether the petitioner has made out grounds to allow I.A.No.2/2018 filed under Sections 391 and 401 r/w Section 482 of Code of criminal 1973?

     (3)     What order?


     11.     My answer to above points is:

             (1)    Affirmative
             (2)    As per final order

REASONS AND DISCUSSION ON POINT NOS.1 AND 2:

12. In paragraphs 10 and 11 of the trial court

judgment it is observed as under:

"10. It is seen that, after the recording of the plea, the Accused has remained continuously absent before the Court and the Complainant has not been cross-examined and the Accused has not at all appeared before this court and therefore his statement under Se.313 of the Cr.P.C. has been dispensed with.

CRL.RP No. 1228 of 2018

11. There is no evidence of defence on behalf of the Accused."

13. In paragraph 13 of the trial court judgment, it

is observed as under:

"13. Inspite of given sufficient opportunities, the counsel for the Accused has not addressed his arguments."

14. A perusal of impugned judgment passed by the

trial court it is crystal clear that trial court has not

provided sufficient opportunity to the accused to cross

examine PW-1. It is observed by the trial court that

accused has remained continuously absent. Hence,

statement under Section 313 of Cr.P.C. is dispensed.

15. The statement of accused under Section 313 of

Cr.P.C. is an empty formality. It is the duty of trial court

to secure the accused and record the statement of accused

under Section 313 of Cr.P.C. In this regard, this Court

relies upon the recent decision of Hon'ble Apex Court in

the case of KALICHARAN AND OTHERS vs STATE OF

CRL.RP No. 1228 of 2018

UTTAR PRADESH passed in Crl.A.No.122 of 2021 on

14.12.2022, wherein it has mentioned about the

importance of 313 statement in the criminal case trial in

para 22, which reads as under:

"22. Such a case was not at all made out by the prosecution in the evidence before the Court. The material brought on record by the prosecution witnesses (PW-1 and PW-2) is to the effect that Harpal Singh died due to injuries sustained as a result of an attack made by accused nos.1,3 and 4 on him by sharp weapons. These material circumstances brought on record against the accused on which their conviction is based were never put to the accused. What was put to the accused was not the case made out by the prosecution in the evidence. No questions are asked in the Section 313 statement about the post-mortem of the body of Harpal Singh. It is not put to the witness that the cause of death of Harpal Singh was due to haemorrhage and shock as a result of injuries caused by sharp weapons. Questioning an accused under Section 313 CrPC is not an empty formality. The requirement of Section 313 CrPC is that the accused must be explained the circumstances appearing in the evidence against him so that accused can offer an explanation. After an accused is questioned under Section 313 CrPC, he is entitled to take a call on the question of examining defence witnesses and leading other evidence. If the accused is not explained the important circumstances appearing against him in the evidence on which his conviction is sought to be based, the accused will not be in a position to explain the said circumstances brought on record against him. He will not be able to properly defend himself. In paragraph 21 of the decision of this

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CRL.RP No. 1228 of 2018

Court in the case of Jai Dev v. State of Punjab1, it was held thus:-

"21. In support of his contention that the failure to put the relevant point against the appellant Hari Singh would affect the final conclusion of the High Court, Mr Anthony has relied on a decision of this Court in Hate Singh Bhagat Singh v. State of Madhya Bharat [1951 SCC 1060 : AIR 1953 SC 468] . In that case, this Court has no doubt referred to the fact that it was important to put to the accused each material fact which is intended to be used against him and to afford him a chance of explaining it if he can. But these observations must be read in the light of the other conclusions 1 (1963) 3 SCR 489 reached by this Court in that case. It would, we think, be incorrect to suggest that these observations are intended to lay down a general and inexorable rule that wherever it is found that one of the points used against the accused person has not been put to him, either the trial is vitiated or his conviction is rendered bad. The examination of the accused person under Section 342 is undoubtedly intended to give him an opportunity to explain any circumstances appearing in the evidence against him. In exercising its powers under Section 342, the court must take care to put all relevant circumstances appearing in the evidence to the accused person. It would not be enough to put a few general and broad questions to the accused, for by adopting such a course the accused may not get opportunity of explaining all the relevant circumstances. On the other hand, it would not be fair or right

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CRL.RP No. 1228 of 2018

that the court should put to the accused person detailed questions which may amount to his cross-examination. The ultimate test in determining whether or not the accused has been fairly examined under Section 342 would be to enquire whether, having regard to all the questions put to him, he did get an opportunity to say what he wanted to say in respect of prosecution case against him. If it appears that the examination of the accused person was defective and thereby a prejudice has been caused to him, that would no doubt be a serious infirmity. It is obvious that no general rule can be laid down in regard to the manner in which the accused person should be examined under Section.342. Broadly stated, however, the true position appears to be that passion for brevity which may be content with asking a few omnibus general questions is as much inconsistent with the requirements of Section 342 as anxiety for thoroughness which may dictate an unduly detailed and large number of questions which may amount to the cross- examination of the accused person. Besides, in the present case, as we have already shown, failure to put the specific point of distance is really not very material."

(emphasis added)

16. In paragraph 145 of the well known decision of

the Hon'ble Apex Court in the case of SHARAD

BIRDHICHAND SARDA V. STATE OF MAHARASHTRA

reported in 1985 SCR (1) 88, it was held thus:

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CRL.RP No. 1228 of 2018

"145. It is not necessary for us to multiply authorities on this point as this question now stands concluded by several decisions of this Court. In this view of the matter, the circumstances which were not put to the appellant in his examination under Section 313 of the Criminal Procedure Code, 1973 have to be completely excluded from consideration."

(emphasis added)

17. Following the principles laid down in the

judgments referred to supra, it is crystal clear that

statement of the accused under Section 313 of Cr.P.C. is

valuable right of the accused and it is not an empty

formality. Recording of statement of accused under

Section 313 of Cr.P.C. is not a purposeless exercise.

Where there is a perfunctory examination of Section 313

of Cr.P.C., the matter is required to be remitted to trial

Court with a direction to retry from the stage at which the

prosecution was closed.

18. In the case on hand, the trial court has not

taken any coercive legal steps to secure the accused to

record the statement under Section 313 of Cr.P.C., instead

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CRL.RP No. 1228 of 2018

of that trial court has closed the case of the complainant

and passed the impugned judgment, which is not

sustainable under law.

19. On behalf of accused, application is filed under

Sections 391 & 401 r/w Section 482 of Cr.P.C. to produce

the documents, which are shown as under:

(1) The certified copy of the complaint in C.C.No.15331/2013 (2) The certified copy of the C.C.No.26616/2014 (3) The copy of the C.C.No.19473/2014 (4) The copy of the complaint dated 24.05.2016 with typed copy (5) The copy of the agreement to sale dated 21.01.2011 (6) The copy of the plaint in O.S.No.191/2014

20. This application is supported with the affidavit

of petitioner, in which he has stated that trial court

without giving sufficient opportunity has proceeded to pass

the impugned judgment. The appellate court has

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CRL.RP No. 1228 of 2018

confirmed the judgment of the trial court. Further it is

stated that respondent's uncle M.Nagaraju was in the habit

of collecting signed papers and cheques for the needy,

who require in need of small amounts and through his

relatives he was presenting the cheques to the Banks and

by imposing exorbitant interest, thereby he was harassing

the poor. The complainant has filed a false case against

this accused. On all these grounds, sought for allowing

this application.

21. Respondent has not filed any objection to this

application. If the trial court has provided an opportunity

to the accused, the accused could have produced these

documents before the trial court to rebut the statutory

presumption under Section 139 of NI Act. But such

opportunity has not been given by the trial court. The

appellate court has also not considered the request of the

accused to provide an opportunity to cross examine the

complainant and adduce defence evidence on his behalf.

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CRL.RP No. 1228 of 2018

The appellate court has not considered the importance of

recording the statement of accused under Section 313 of

Cr.P.C. Hence, considering the facts and circumstances of

the case and also keeping in mind the aforesaid decisions

of Hon'ble Apex Court, I am of the considered view that

impugned judgments passed by both the Courts suffers

from illegal infirmities. Accordingly, the petitioner has also

made out grounds to allow this application under Section

391 of Cr.P.C. Hence, I answer Point Nos.1 and 2 in the

affirmative.

RE. POINT NO.3:

22. For the reasons aforestated, I proceed to pass

the following:

ORDER

(1) Criminal revision petition is allowed.

(2) Judgment passed by the trial court in C.C.No.35237/2014 dated 02.05.2017 passed by XVI Addl. Chief Metropolitan Magistrate, Bengaluru City, which is

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CRL.RP No. 1228 of 2018

confirmed by the judgment dated 05.10.2018 passed by the LXVII Addl. City Civil and Sessions Court, Bengaluru City (CCH No.68), in Crl.A.No.1138/2016 is set aside.

(3) Matter is remitted back to trial court to provide an opportunity to accused to cross examine PW-1 and after closure of complainant's side evidence the trial court shall record the statement under Section 313 of Cr.P.C. and proceed with the case in accordance with law.

(4) Accused is directed to appear before the trial court on 15.02.2023 without fail.

(5) Trial court is also directed to issue notice to complainant to appear before the Court on 15.02.2023 to proceed with the case.

(6) Registry is directed to send an intimation to the trial court along with the copy of this order to proceed with the case.

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CRL.RP No. 1228 of 2018

(7) Trial court is directed to dispose of the case at the earliest within an outer limit of three months from the date of receipt of copy of this order as the case is old one.

Sd/-

JUDGE

DR