Karnataka High Court
G.Devendrappa S/O. G Bheemavva vs Badrinath Ladda S/O. Nanda ... on 16 June, 2023
Bench: Anil B Katti
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CRL.RP No. 100036 of 2014
C/W CRL.RP No. 100037 of 2014, CRL.RP No.
100038 of 2014, CRL.RP No. 100039 of 2014
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 16TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR JUSTICE ANIL B KATTI
CRIMINAL REVISION PETITION NO. 100036 OF 2014
C/W
CRIMINAL REVISION PETITION NO. 100037 OF 2014
CRIMINAL REVISION PETITION NO. 100038 OF 2014
CRIMINAL REVISION PETITION NO. 100039 OF 2014
IN CRL. R P NO. 100036 OF 2014
BETWEEN:
G.DEVENDRAPPA S/O. G BHEEMAVVA
AGED 43 YEARS, OCC: CHICKEN MERCHANT
R/O. HARIJANAKERE, ESHWAR NAGAR,
WARD NO. 35, HOSPET,
DISTRICT: BELLARY
Digitally
signed by J ...PETITIONER
MAMATHA
J
MAMATHA Date: (BY SRI. VISHWANATH HEGDE, ADVOCATE)
2023.06.21
12:24:02
+0530 AND:
BADRINATH LADDA S/O. NANDA KISHORE LADDA,
AGED 44 YEARS,
PROPRIETOR OF SREENIDHI TRADING COMPANY,
R/O. 345, KIRAN NIVAS, OPP: AIR HOSPET,
DISTRICT: BELLARY
...RESPONDENT
(BY SRI. B. G. INDI, ADV. FOR SIR. K. L. PATIL, ADV.)
THIS CRIMINAL REVISION PETITION IS FILED U/S 397 R/W
SEC. 401 OF CR.P.C. SEEKING TO B) SET ASIDE THE JUDGMENT,
CONVICTION AND SENTENCE DATED 15.12.2007 PASSED BY
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CRL.RP No. 100036 of 2014
C/W CRL.RP No. 100037 of 2014, CRL.RP No.
100038 of 2014, CRL.RP No. 100039 of 2014
ADDITIONAL CIVIL JUDGE (JR.DN.) & J.M.F.C. COURT, HOSPET IN
C.C.NO.2610/2006 AND JUDGMENT DATED 26.12.2013 PASSED BY
THE III-ADDL. DISTRICT AND SESSION JUDGE BELLARY, SITTING AT
HOPSET IN CRL. APL. No. 37/2013 AND CONSEQUENTLY REMAND
THE CASE AT C.C.NO.2610/2006, TO ADDITINAL. CIVIL JUDGE
(JR.DN.) AND J.M.F.C COURT, HOSPET, FOR DISPOSAL IN
ACCORDANCE WITH LAW AFTER GIVING AN OPPORTUNITY TO THE
PETITIONER/ACCUSED FOR CROSS EXAMINATION THE
COMPLAINANT AND FOR ADDUCING HIS EVIDENCE.
IN CRL. R P NO. 100037 OF 2014
BETWEEN:
G.DEVENDRAPPA S/O. G BHEEMAVVA
AGED 43 , OCC. CHICKEN MERCHANT
R/O. HARIJANAKERE, ESHWAR NAGAR,
WARD NO. 35, HOSPET,
DISTRICT: BELLARY
...PETITIONER
(BY SRI. VISHWANATH HEGDE, ADVOCATE)
AND:
BADRINATH LADDA S/O. NANDA KISHORE LADDA
AGED 44 , PROPRIETOR OF SREENIDHI TRADING COMPANY,
R/O. 345, KIRAN NIVAS, OPP: AIR HOSPET,
DISTRICT: BELLARY
...RESPONDENT
(BY SRI. B. G. INDI, ADV. FOR SIR. K. L. PATIL, ADV.)
THIS CRIMINAL REVISION PETITION IS FILED U/S 397 R/W
SEC. 401 OF CR.P.C. SEEKING TO B) SET ASIDE THE JUDGMENT,
CONVICTION AND SENTENCE DATED 15.12.2007 PASSED BY
ADDITIONAL CIVIL JUDGE (JR.DN.) AND J.M.F.C. COURT, HOSPET IN
C.C.NO.2609/2006 AND JUDGMENT DATED 26.12.2013 PASSED BY
THE III-ADDL. DISTRICT AND SESSION JUDGE BELLARY, SITTING AT
HOPSET, IN CRL.APL.NO.38/2013 AND CONSEQUENTLY REMAND THE
CASE AT C.C.NO.2609/2006, TO ADDITINAL. CIVIL JUDGE (JR.DN.)
AND J.M.F.C COURT, HOSPET, FOR DISPOSAL IN ACCORDANCE WITH
LAW AFTER GIVING AN OPPORTUNITY TO THE
PETITIONER/ACCUSED FOR CROSS EXAMINATION THE
COMPLAINANT AND FOR ADDUCING HIS EVIDENCE.
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CRL.RP No. 100036 of 2014
C/W CRL.RP No. 100037 of 2014, CRL.RP No.
100038 of 2014, CRL.RP No. 100039 of 2014
IN CRL. R P NO. 100038 OF 2014
BETWEEN:
G.DEVENDRAPPA S/O. G BHEEMAVVA
AGED 43 , OCC. CHICKEN MERCHANT
R/O. HARIJANAKERE, ESHWAR NAGAR,
WARD NO. 35, HOSPET,
DISTRICT: BELLARY
...PETITIONER
(BY SRI. VISHWANATH HEGDE, ADVOCATE)
AND:
BADRINATH LADDA S/O. NANDA KISHORE LADDA,
AGED 44 ,PROPRIETOR OF SREENIDHI TRADING COMPANY,
R/O. 345, KIRAN NIVAS, OPP: AIR HOSPET,
DISTRICT: BELLARY
...RESPONDENT
(BY SRI. B. G. INDI, ADV. FOR SIR. K. L. PATIL, ADV.)
THIS CRIMINAL REVISION PETITION IS FILED U/S 397 R/W
SEC. 401 OF CR.P.C. SEEKING TO B) SET ASIDE THE JUDGMENT,
CONVICTION AND SENTENCE DATED 15.12.2007 PASSED BY
ADDITIONAL CIVIL JUDGE (JR.DN.) AND J.M.F.C. COURT, HOSPET IN
C.C.NO.2607/2006 AND JUDGMENT DATED 26.12.2013 PASSED BY
THE III ADDL. DISTRICT AND SESSION JUDGE BELLARY, SITTING AT
HOPSET, IN CRL.APL.NO.39/2013 AND CONSEQUENTLY REMAND THE
CASE AT C.C.NO.2607/2006, TO ADDITINAL CIVIL JUDGE (JR.DN.)
AND J.M.F.C COURT, HOSPET, FOR DISPOSAL IN ACCORDANCE WITH
LAW AFTER GIVING AN OPPORTUNITY TO THE
PETITIONER/ACCUSED FOR CROSS EXAMINATION THE
COMPLAINANT AND FOR ADDUCING HIS EVIDENCE.
IN CRL. R P NO. 100039 OF 2014
BETWEEN:
G.DEVENDRAPPA S/O. G BHEEMAVVA
AGED 43 , OCC. CHICKEN MERCHANT
R/O. HARIJANAKERE, ESHWAR NAGAR,
WARD NO. 35, HOSPET,
DISTRICT: BELLARY
...PETITIONER
-4-
CRL.RP No. 100036 of 2014
C/W CRL.RP No. 100037 of 2014, CRL.RP No.
100038 of 2014, CRL.RP No. 100039 of 2014
(BY SRI. VISHWANATH HEGDE, ADVOCATE)
AND:
BADRINATH LADDA S/O. NANDA KISHORE LADDA
AGED 44, PROPRIETOR OF SREENIDHI TRADING COMPANY,
R/O. 345, KIRAN NIVAS, OPP: AIR HOSPET,
DISTRICT: BELLARY
...RESPONDENT
(BY SRI. B. G. INDI, ADV. FOR SIR. K. L. PATIL, ADV.)
THIS CRIMINAL REVISION PETITION IS FILED U/S 397 R/W
SEC. 401 OF CR.P.C. SEEKING TO B) SET ASIDE THE JUDGMENT,
CONVICTION AND SENTENCE DATED 15.12.2007 PASSED BY
ADDITIONAL CIVIL JUDGE (JR.DN.) AND J.M.F.C. COURT, HOSPET IN
C.C.NO.2608/2006 AND JUDGMENT DATED 26.12.2013 PASSED BY
THE III ADDL. DISTRICT AND SESSIONS JUDGE BELLARY, SITTING
AT HOPSET, IN CRL.APL.NO.40/2013 AND CONSEQUENTLY REMAND
THE CASE AT C.C.NO.2608/2006, TO ADDITINAL. CIVIL JUDGE
(JR.DN.) AND J.M.F.C COURT, HOSPET, FOR DISPOSAL IN
ACCORDANCE WITH LAW AFTER GIVING AN OPPORTUNITY TO THE
PETITIONER/ACCUSED FOR CROSS EXAMINATION THE
COMPLAINANT AND FOR ADDUCING HIS EVIDENCE.
THESE CRIMINAL REVISION PETITIONS, COMING ON FOR
FURTHER ARGUMENTS, THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
Revision petitioner/accused in all these revision petitions
challenging the judgment of first Appellate Court as well as trial
Court as per the following table:
CRL.RP No. 100036 of 2014
C/W CRL.RP No. 100037 of 2014, CRL.RP No.
100038 of 2014, CRL.RP No. 100039 of 2014
SL.
CRL.R.P No. C.C. No. CRL. A. No.
NO.
2610/2006 37/2013
1. 100036/2014
dated 15/12/2007 dated 26/12/2013
2609/2006 38/2013
2. 100037/2014
dated 15/12/2007 dated 26/12/2013
2607/2006 39/2013
3. 100038/2014
dated 15/12/2007 dated 26/12/2013
2608/2006 40/2013
4. 100039/2014
dated 15/12/2007 dated 26/12/2013
2. Parties to these revision petitions are referred with
their ranks as assigned in the trial Court for the sake of
convenience.
3. The factual matrix leading to the case of
complainant in all these revision petitions which are common in
nature can be stated in nutshell to the effect that respondent -
complainant filed private complaint under Section 200 Cr.P.C.
for the offence punishable under Section 138 of N.I.Act on the
file of Addl. Civil Judge (Jr.Dn.) and JMFC., Hospet, as per the
chart referred above. The trial Court after appreciation of
evidence on record convicted accused for offence punishable
CRL.RP No. 100036 of 2014
C/W CRL.RP No. 100037 of 2014, CRL.RP No.
100038 of 2014, CRL.RP No. 100039 of 2014
under Section 138 of the Negotiable Instruments Act (for short
'the Act') and imposed sentence as per order of sentence.
4. Accused in all the cases referred above challenged
the judgment of conviction and order of sentence before the
first Appellate Court on the file of III Addl. District and Sessions
Judge, Ballari, sitting at Hospet, in the respective appeals
referred above. The first Appellate Court on re-appreciation of
material evidence on record by judgment dated 26.12.2013
dismissed the appeals as referred above and confirmed the
judgment of conviction and order of sentence passed by trial
Court.
5. Revision petitioner/accused in all these revision
petitions is challenging the concurrent findings of both Courts
below contending that demand notice under Section 138 of the
N.I. Act is not served to accused. The trial Court has not given
reasonable opportunity to the revision petitioner/accused to
cross-examine PW-1 and hurriedly proceeded to pass judgment
of conviction which has been affirmed by the first Appellate
Court. The revision petitioner was not given reasonable
opportunity to lead his defence evidence to disprove the case of
CRL.RP No. 100036 of 2014
C/W CRL.RP No. 100037 of 2014, CRL.RP No.
100038 of 2014, CRL.RP No. 100039 of 2014
complainant. The approach and appreciation of evidence on
record by both the Courts below and findings recorded without
giving opportunity of offering explanation to accused cannot be
legally sustained. Therefore, prayed for allowing the revision
petitions and to set aside the judgment of both the Courts
below, consequently to remand the matters to the trial Court
for giving reasonable opportunity to accused to cross-examine
PW-1 and to lead his defence evidence.
6. In response to notice in all the revision petitions,
respondent appeared through counsel.
7. This Court by order dated 09.01.2023 on the
submission of learned counsel for revision petitioner that he is
unable to contact revision petitioner has ordered to issue
bailable warrant. The same was returned unexecuted since the
accused was suffering from mental illness and for last 1 year
has left the house and did not return. This Court by order
dated 29.05.2023 observed that learned counsel representing
revision petition can argue the matter on merits and presence
of revision petitioner in all the cases is not required for
disposal.
CRL.RP No. 100036 of 2014
C/W CRL.RP No. 100037 of 2014, CRL.RP No.
100038 of 2014, CRL.RP No. 100039 of 2014
8. Heard the arguments of both sides.
9. On careful perusal of the trial Court records and the
evidence of PW-1 with reference to the sequence of events in
all the cases, it is evident that complainant in all these 4 cases
filed private complaint under Section 200 Cr.P.C. for 4 different
cheques issued by accused. The said cheques on presentation
came to be dishonoured for want of sufficient funds in the
account of accused. Complainant issued demand notice and
the same is not responded by accused. Therefore, complainant
has filed complaint in all these cases for taking appropriate
legal action against accused for the offence punishable under
Section 138 of N.I.Act.
10. The records also would reveal that accused
appeared through his counsel in all the cases and complainant
was examined as PW-1 and in support of his case, got marked
the documents as per Ex.P.1 to Ex.P.5. Indisputably, there was
no cross-examination of PW-1. The trial Court on appreciation
of evidence convicted the accused in all the cases for offence
punishable under Section 138 of N.I.Act.
CRL.RP No. 100036 of 2014
C/W CRL.RP No. 100037 of 2014, CRL.RP No.
100038 of 2014, CRL.RP No. 100039 of 2014
11. Accused challenged judgment of conviction and
order of sentence before the first Appellate Court in all the
cases by filing appeals as referred in the chart. The first
Appellate Court after re-appreciation of evidence on record
holding that opportunity given by trial Court has not been
availed by accused, as a result dismissed all the appeals and
confirmed judgment of trial Court.
12. On careful perusal of entire records in all the cases
and the order-sheet maintained by trial Court, it would go to
show that the sequence of events and dates, recording of
evidence and stages are similar in all these 4 cases. The order-
sheet maintained by trial Court would go to show that
complainant in all the cases was examined on 15.02.2007 and
relied on the documents at Ex.P.1 to Ex.P.5. The matter was
adjourned for cross-examination to 14.03.2007 as requested by
learned counsel for accused. On both the dates, accused was
present before the Court. Complainant remained absent on
14.03.2007 and on 28.04.2007. On the said day, i.e., on
28.04.2007 it has been observed that the matter is adjourned
for cross-examination of PW-1 or for settlement. On
23.06.2007, the matter was referred to Lok Adalath. The
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CRL.RP No. 100036 of 2014
C/W CRL.RP No. 100037 of 2014, CRL.RP No.
100038 of 2014, CRL.RP No. 100039 of 2014
matter was not settled and the case came to be adjourned to
27.07.2007 for cross-examination of PW-1. On the said day,
PW-1 and accused were present before the Court and the
learned counsel sought for adjournment to cross-examine
PW-1. However, trial Court has rejected the prayer and
complainant's side was closed. The Presiding Officer was on
leave on 25.08.2007 and matter came to be adjourned to
07.09.2007. On the said day, statement of accused under
Section 313 Cr.P.C. came to be recorded. The matter came to
be adjourned to 11.10.2007 for defence evidence.
13. On 11.10.2007, complainant was absent and EP
came to be filed. Accused with his counsel was present and the
adjournment sought by learned counsel for accused came to be
rejected and defence evidence was taken as nil. The matter
came to be posted for arguments on 25.10.2007. On the said
day, complainant was absent and accused was present. The
learned counsel for complainant addressed the argument and
matter was adjourned for reply on 17.11.2007. On
17.11.2017, complainant and accused both were present and
the matter was referred to Lok Adalath on 01.12.2007.
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CRL.RP No. 100036 of 2014
C/W CRL.RP No. 100037 of 2014, CRL.RP No.
100038 of 2014, CRL.RP No. 100039 of 2014
14. On the said day also, complainant remained absent.
EP was filed. Accused was present. Reply was taken as heard
and posted the matter for judgment. On 15.12.2007,
judgment came to be passed.
15. The trial Court as well as first Appellate Court with
reference to the above referred sequence of events in each
case has found that accused did not avail the opportunity given
to him for cross-examination of PW-1 and also to lead his
evidence.
16. Looking to the order-sheet with reference to
sequence of events in each case as referred above, it would go
to show that the accused was not at all at fault and the learned
counsel for accused was also present. The time sought came to
be rejected. However, on two occasions, i.e., on 23.06.2007
and on 17.11.2007, the matter was referred to Lok Adalath.
On the 01.12.2007 reply was heard and the matter was
reserved for judgment on 15.12.2007. Indisputably, records
would demonstrate the fact that accused was not at fault and
he was duly represented by learned counsel and the fact
remains that PW-1 in all cases was not cross-examined and the
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CRL.RP No. 100036 of 2014
C/W CRL.RP No. 100037 of 2014, CRL.RP No.
100038 of 2014, CRL.RP No. 100039 of 2014
case has been decided only on the basis of examination-in-chief
of PW-1 without there being test of cross-examination. The
judgment of conviction without giving reasonable opportunity to
cross-examine PW-1 in the light of factual aspects with regard
to the sequence of events referred above cannot be legally
sustained. Therefore, interference of this Court is required to
give an opportunity to the accused to cross-examine PW-1
subject to reasonable conditions. Consequently, proceed to
pass the following:
ORDER
Revision petitions filed by revision petitioner are allowed.
The judgment dated 26.12.2013 passed by the III Addl.
District and Sessions Judge, Bellary, sitting at Hospet, in
Crl.A.Nos.37/2013, 38,2013, 39/2013 and 40/2013 confirming
the judgment dated 15.12.2007 passed by Addl. Civil Judge
(Jr.Dn.) and JMFC, Hospet, in C.C.Nos.2610/2006, 2690/2006,
2607/2006 and 2608/2006 is set aside.
The matter is remanded to trial Court to proceed with the
matter from the stage of cross-examination of PW-1 and then
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CRL.RP No. 100036 of 2014
C/W CRL.RP No. 100037 of 2014, CRL.RP No.
100038 of 2014, CRL.RP No. 100039 of 2014
to dispose of the same in accordance with law as expeditiously
as possible.
The revision petitioner/accused shall deposit 50% of the
cheque amount in each case before the trial Court within a
period of six weeks from the date of appearance.
The parties shall appear before the trial Court on
17.07.2023 without there being any notice to receive further
instruction from the trial Court.
The registry is directed to transmit the records with the
copy of this judgment to trial Court.
(Sd/-)
JUDGE
JM
