M S Nagaraj vs Mailarappa
2023 Latest Caselaw 3991 Kant

Citation : 2023 Latest Caselaw 3991 Kant
Judgement Date : 5 July, 2023

Karnataka High Court

M S Nagaraj vs Mailarappa on 5 July, 2023

Bench: J.M.Khazi

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                                                   CRL.A No. 1173 of 2020
                                                         NC: 2023:KHC:23041




                   IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                          DATED THIS THE 5TH DAY OF JULY, 2023

                                          BEFORE
                           THE HON'BLE MS JUSTICE J.M.KHAZI
                           CRIMINAL APPEAL NO.1173 OF 2020
                   BETWEEN:

                      M S NAGARAJ
                      S/O LATE SUBBEGOWDA
                      AGED 46 YEARS
                      RESIDING AT SBG THEATRE,
                      HARSHAMAHAL ROAD,
                      HASSAN - 573 201.
                                                                ...APPELLANT
                   (BY SRI. JAGAN MOHAN M T, ADVOCATE)

                   AND:

                      MAILARAPPA
                      S/O CHIKKANNA K R
                      AGED ABOUT 50 YEARS,
                      RESIDING AT NO.75, 20TH CROSS,
                      MALAGALA VILLAGE,
Digitally signed      BENGALURU
by REKHA R
Location: High        ALSO RESIDING AT
Court of
Karnataka             SHARAVANA OFFSET PRINTERS,
                      21, 4TH CROSS, 5TH MAIN,
                      GANDHINAGARA,
                      BENGALURU - 560 009.
                                                              ...RESPONDENT

                        THIS CRIMINAL APPEAL IS FILED UNDER SECTION
                   378(4) OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND
                   ORDER     OF     ACQUITTAL    DATED     14.01.2020  IN
                   C.C.NO.3631/2014 PASSED BY THE II ADDITIONAL CIVIL
                   JUDGE AND J.M.F.C., HASSAN AND REMAND THE MATTER FOR
                   FRESH DISPOSAL ON MERITS BY GIVING AN OPPORTUNITY TO
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                                     CRL.A No. 1173 of 2020
                                            NC: 2023:KHC:23041




APPELLANT TO TENDER HIS CROSS EXAMINATION BY THE
RESPONDENT/ACCUSED BY ALLOWING THIS APPEAL WITH
COST IN THE INTEREST OF JUSTICE AND EQUITY.

    THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:

                        JUDGMENT

This appeal is by the complainant, challenging the

dismissal of the complaint filed by him against

respondent/accused for the offence punishable under

Section 138 of N.I.Act, contending that the cheque issued

by the respondent/accused towards repayment of legally

recoverable debt came to be dishonored. After issuing

legal notice and on failure of respondent/accused to pay

the amount due, he filed complaint under Section 200

Cr.P.C. After appearance of accused and he pleading not

guilty, complainant has examined-in-chief himself as PW-1

and got marked Ex.P1 to 4. When the case was posted for

cross-examination, on the ground that he has not

tendered himself for cross-examination, the trial Court has

recorded statement of accused under Section 313 Cr.P.C.

and proceeded to dismiss the appeal by a considered

CRL.A No. 1173 of 2020 NC: 2023:KHC:23041

judgment. Contending that complainant ought to have

given reasonable opportunity to tender for cross-

examination and thereafter to lead further evidence, if

any, complainant is before this Court seeking remand.

2. Though duly served respondent has not chosen

to appear before this Court.

3. Heard learned counsel for appellant and

perused the record.

4. From the impugned order, it is evident that

complainant filed a complaint under Section 200 Cr.P.C

against respondent/accused alleging offence punishable

under Section 138 of N.I.Act. Accused pleaded not guilty

and claimed trial. Complainant is examined in chief and he

got marked 4 documents. When the case was posted for

cross-examination, on the ground that complainant has

failed to tender himself for cross-examination, the trial

Court has discarded his evidence. However, instead of

dismissing the complaint for non-prosecution, the trial

Court has proceeded to record the statement of accused

CRL.A No. 1173 of 2020 NC: 2023:KHC:23041

under Section 313 Cr.P.C and passed a considered

judgment. It appears for the sake of getting points for

disposal, the trial Court has chosen to pass a considered

order. When the evidence of complainant was discarded,

there was nothing on record to put to the accused under

Section 313 Cr.P.C and also for the Court to decide the

matter on merit.

5. Anyhow fact remains that the complainant

ought to have given a reasonable opportunity to tender

himself for cross-examination. The cheque amount

involved is Rs.6,35,000/-. Taking into consideration these

facts and circumstances this Court is of the considered

opinion that the impugned judgment and order is liable to

be set aside and case required to be remanded for fresh

disposal after providing reasonable opportunity to both

sides. No prejudice would be caused to the accused as he

would get opportunity to resist the case of the

complainant.

CRL.A No. 1173 of 2020 NC: 2023:KHC:23041

6. For the above reasons, the impugned order is

liable to be set aside and matter requires remand for

disposal in accordance with law and accordingly, I proceed

to pass the following:

ORDER

(i) Appeal is allowed.

(ii) The impugned judgment and order dated

14.01.2020 passed in Crl.C.No.3631/2014 (old

C.C.No.733/2012) on the file of II Addl.Civil

Judge & JMFC., Hassan, is set aside.

Crl.C.No.3631/2014 (old C.C.No.733/2012) is

restored to the file.

(ii) The complainant and respondent/accused are

directed to appear before the trial Court on

07.08.2023 without waiting for further notice

from the trial Court.