Karnataka High Court

K.M. Subbaiah vs Shrenick T J on 15 November, 2023

Bench: G Basavaraja

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                                                      NC: 2023:KHC:40691
                                                   CRL.A No. 613 of 2013




                 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                   DATED THIS THE 15TH DAY OF NOVEMBER, 2023

                                       BEFORE
                      THE HON'BLE MR JUSTICE G BASAVARAJA
                          CRIMINAL APPEAL NO.613 OF 2013
               BETWEEN:

               K.M. SUBBAIAH,
               S/O MACHAIAH,
               AGED ABOUT 84 YEARS,
               PLANTER, DASWAL,
               MADIKERI TOWN,
               KODAGU DISTRICT.
                                                            ...APPELLANT
               (BY SRI. A. DERICK ANIL, ADVOCATE FOR
                  SRI. JAGADEESHMURTHY K.M., ADVOCATE)

               AND:

               SHRENICK T.J.,
               S/O JANARDHANA,
Digitally      AGED ABOUT 30 YEARS,
signed by
SANDHYA S      HODDUR VILLAGE,
Location:
High Court     MADIKERI TALUK,
of Karnataka
               KODAGU DISTRICT.
                                                          ...RESPONDENT
               (BY SRI. D.P. PRASANNA, ADVOCATE)

                    THIS CRL.A. IS FILED U/S.378(4) OF CR.P.C PRAYING TO
               SET ASIDE THE JUDGMENT OF ACQUITTAL ORDER DATED
               15.02.2013 PASSED BY THE S.J., KODAGU, MADIKERI IN
               CRL.A.NO.32/2012 - ACQUITTING THE RESPONDENT/ACCUSED
               FOR THE OFFENCE P/U/S 138 OF N.I.ACT AND CONFIRM THE
               JUDGMENT OF CONVICTION DATED 28.04.2012 PASSED BY
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                                                 NC: 2023:KHC:40691
                                              CRL.A No. 613 of 2013




THE ADDL. C.J. AND J.M.F.C., MADIKERI IN C.C.NO.331/2009
BY ALLOWING THIS CRL.A. AND ETC.,

     THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
                             JUDGMENT

Appellant-Complainant has preferred this appeal against

the judgment of acquittal dated 15th February, 2013 passed in

Criminal Appeal No.32 of 2012 on the file of District and

Sessions Judge, Kodagu Madikeri (for brevity, hereinafter

referred to as the "Appellate Court") whereby the Appellate

Court has reversed the judgment of conviction and order of

sentence dated 28th April, 2012 passed in CC No.331 of 2009

by the Additional Civil Judge and JMFC, Madikeri (for brevity,

hereinafter referred to as the "Trial Court").

2. For the sake of convenience, the parties in this

appeal are referred to as per their status and rank before the

Appellate Court.

3. Brief facts of the case of complainant are that

accused had issued cheque bearing No.0672446 dated 14th

June, 2008 drawn on Chikkamagalur-Kodagu Grameena Bank,

Hakathur for Rs.2,66,000/- for discharge of his partial

debt/liability. When the complainant has presented the same

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for encashment through his banker State Bank of Mysore, the

same returned on 16th July, 2008 with an endorsement "funds

insufficient". Thereafter, complainant got issued notice on 25th

July, 2008 calling upon the accused to pay the cheque amount

within fifteen days from the date of receipt of notice. The

notice was duly served on 05th August, 2008. Despite the

same, accused has failed to pay the cheque amount and hence

the complaint has filed complaint on 15th September, 2008.

After recording sworn statement, the trial Court has taken

cognizance for commission of offence punishable under Section

138 of Negotiable Instruments Act, 1881 and case was

registered in CC No.331 of 2009. In pursuance of summons,

the accused appeared before the Court and substance of plea

was recorded. Accused pleaded not guilty and claimed to be

tried.

4. The prove the guilt of the accused, three witnesses

were examined as PWs1 to 3 and got marked nine documents

as Exhibits P1 to P9. On closure of complainant's side

evidence, statement of accused under Section 313 of the Code

of Criminal Procedure was recorded. Accused has totally denied

the evidence of prosecution witnesses and adduced defence

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evidence as DWs1 and 2 and no documents were marked on

behalf of the accused/respondent. Upon hearing the

arguments, the trial Court has convicted the accused for

commission of offence under Section 138 of Negotiable

Instruments Act, 1881 and sentenced to pay fine of

Rs.2,69,000/-. In default, accused shall undergo simple

imprisonment for a period of six months. Being aggrieved by

the said judgment of conviction and order of sentence, the

accused preferred appeal before the District and Sessions Judge

at Kodagu in Criminal Appeal No.32 of 2012. The Appellate

Court allowed the appeal and set aside the judgment of

conviction and order of sentence passed by the trial Court.

Against the said order of acquittal, the complainant has

preferred the present appeal before this Court.

5. Sri A. Derick Anil, learned counsel appearing for the

appellant submits that though the appellant-complainant has

proved the essential ingredients to attract the offence

punishable under Section 138 of the Negotiable Instruments

Act, 1881, the Appellate Court has acquitted the accused which

is not in accordance with law and facts. Appellate Court has

not properly appreciated the evidence on record in accordance

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with law. The Appellate Court has ignored the statutory

presumption under Section 139 of Negotiable Instruments Act,

1881. He submits that the appellate Court has not provided

sufficient opportunity to the complainant to cross-examine

DWs1 and 2. In paragraph 38 of its judgment, the appellate

Court has observed that the Complainant has not cross-

examined DWs1 and 2. The Appellate Court has failed to

appreciate the evidence of DWs1 and 2 which is not challenged

by the complainant. Learned Counsel submits that if the case

is remitted back to the trial Court with an opportunity to the

complainant to cross-examine DWs1 and 2, the complainant

will cross-examine DWs1 and 2. On all these grounds, he

sought to allow the appeal.

6. On the other hand, Sri Jagadeesh Murthy K.M.,

learned counsel appearing for the respondent-accused submits

that the Appellate Court has properly appreciated the evidence

on record in accordance with law and allowed the appeal not

only on the ground that the complainant has not cross-

examined DWs1 and 2, but also has assigned reasons as to the

legally recoverable debt and there is no ground to remand the

matter back to the trial Court. Hence, he submits that there

NC: 2023:KHC:40691 CRL.A No. 613 of 2013

are no grounds to interfere with the judgment of acquittal

passed by the Appellate Court and accordingly, sought to

dismiss the appeal.

7. Having heard the learned counsel for the parties

and on perusal of records, the following points would arise for

my consideration in this appeal:

1. Whether the appellant-complainant has made

out a ground to remand the case to the trial

Court for cross-examination of DWs1 and 2?

2. What order?

8. My answer for the above points is as under:

Point No.1: in the affirmative;

Point No.2: as per final order

Regarding Point No.1:

9. I have carefully examined the materials placed

before this Court. It is not in dispute that Cheque No.0672446

belongs to the accused. It is also not in dispute as to the

signature Exhibit P1(a) signed by the accused. The said cheque

was presented for encashment and the same was returned with

an endorsement "funds insufficient". Thereafter, the

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complainant caused legal notice through his Advocate as per

Exhibit P4 calling upon the accused to repay the cheque

amount and the same was duly served on the accused on 05th

August, 2008. Accused has neither replied nor paid the cheque

amount. Hence the complainant has filed complaint against the

accused for commission of offence punishable under Section

138 Negotiable Instruments Act, 1881 within prescribed time.

After recording sworn statement of the accused, the trial Court

took cognizance of the alleged commission of offence under

Section 138 of Negotiable Instruments Act, 1881. To prove the

guilt of the accused, three witnesses were examined by the

complainant as PWs1 to 3 and nine documents were marked as

Exhibits P1 to P9. On closure of complainants side evidence,

the statement under Section 313 of Code of Criminal Procedure

was recorded and the accused has totally denied the evidence

of complainant witnesses and adduced the oral evidence of

DWs 1 and 2. The trial Court has recorded the statement of

DW1 on 01st October, 2011 and on that date examination-in-

chief of DW1 was recorded and the examination-in-chief of

complainant was taken as 'nil' as the complainant and his

Advocate remained absent. That 06th January, 2012, the trial

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Court has recorded the examination-in-chief of DW2-S.K.

Changappa. On that day also the cross-examination of the

complainant was taken as 'nil' as the complainant and his

Advocate remained absent. The Order sheet dated 01st

October, 2011 and 06th January, 2012 reveals that on the date

of recording examination-in-chief of DWs1 and 2, the

complainant and his Advocate remained absent. After

recording the evidence of DWs1 and 2, that on 10th February,

2012, the learned counsel for the accused filed application

under Section 311 of Code of Criminal Procedure to recall PW2.

On that day also the complainant remained absent and the

application filed under Section 311 of Code of Criminal

Procedure was allowed and PW2 was recalled. On 17th March,

2012, PW2 was recalled and further cross-examination was

made by the counsel for the accused. After further cross-

examination of PW2 on 17th March, 2012, the trial Court has

not provided an opportunity to the complainant for cross-

examination of DWs1 and 2. The trial Court could have

provided an opportunity to the complainant to cross-examine

DWs1 and 2. Unfortunately, the complainant also has not filed

any application for recalling DWs1 and 2 for cross-examination.

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Now, after acquittal of the accused by the Appellate Court, the

counsel for the appellant/complainant is seeking for an

opportunity to the complainant for cross-examination of DWs 1

and 2.

10. On perusal of the impugned judgment passed by

the Appellate Court, at paragraph 38 of the judgment, the

Appellate court has observed as under:

"38. Point No.2:- The learned trial judge though has referred to the answers given in the cross examination of PWs-1 and 2 and has also noticed that DWs-1 and 2 have not been cross-examined, has failed to consider the inconsistencies and discrepancies in the evidence of PWs-1 and 2 and should have in my opinion taken into consideration the fact of non-cross examination of DWs-1 and 2. The trial judge also should have noticed that rebuttal of the presumption u/Sec 138 can be done by placing evidence which indicates that the defence is probable and strict proof of defence is not necessary. This court being empowered to re-appreciate the evidence and also has a duty to do so, has done and on such re-appreciation finds it unable to pursuade itself to the view taken by the learned trial judge. Therefore, it is necessary to interfere in the impugned judgment. Accordingly, I answer Point No.2 in the 'Affirmative'."

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11. On careful examination of the evidence on record, it

is crystal clear that non-cross examination of DWs1 and 2 is

also one of the grounds for acquittal. Considering the facts and

circumstances of the case and in the interest of justice, it is just

and proper to provide an opportunity to the

complainant/appellant to cross-examine DWs1 and 2.

Accordingly, without expressing any opinion on the merits of

the case, I answer Point No.1 in the affirmative.

Regarding Point No.2:

12. For the aforesaid reasons and discussions, proceed

to pass the following:

ORDER

1. Appeal is allowed;

2. Judgment of acquittal dated 15th February, 2013 passed in Criminal Appeal No.32 of 2012 by the Sessions Judge, Kodagu at Madikeri, is set aside;

3. Judgment of conviction and order of sentence dated 28th April, 2012 passed in CC No.331 of 2009 by the Additional Civil Judge and JMFC, Madikeri is also set aside;

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4. Case is remanded back to the trial Court with a direction to provide an opportunity to the appellant/complainant to cross-examine DWs1 and 2;

5. The trial Court is also directed to provide an opportunity to both the parties to adduce any further additional evidence and thereafter dispose of the matter in accordance with law within an outer limit of six months from the date of receipt of copy of this judgment, since the matter is of the year 2009;