Karnataka High Court
Suresh B H vs M Dayasagar on 21 November, 2023
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NC: 2023:KHC:41773
CRL.A No. 2298 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE G BASAVARAJA
CRIMINAL APPEAL NO. 2298 OF 2018
BETWEEN:
SURESH B.H,
S/O HUCHAPPA H.A,
R/AT 45/52/2, 1ST CROSS,
21ST MAIN, SIDDESHWARA NAGARA,
VIJAYANAGARA, BENGALURU - 560 040.
...APPELLANT
(BY SRI. H.B. RUDRESH, ADVOCATE)
AND:
M. DAYASAGAR,
S/O MANJUNATH,
AGED ABOUT 32 YEARS,
Digitally R/AT NO.39/133, BILIGIRI NILAYA,
signed by
SANDHYA S 1ST FLOOR, I 'D' CROSS,
Location: High REMCO LAYOUT, VIJAYANAGARA,
Court of
Karnataka BENGALURU - 560 040.
...RESPONDENT
(BY SMT. MUSRATH TABASSUM, ADVOCATE)
THIS CRL.A IS FILED U/S.378(4) OF CR.P.C
PRAYING TO SET ASIDE THE JUDGMENT DATED 02.07.2018,
PASSED BY THE XXIII A.C.M.M., NRUPATHUNGA ROAD,
BANGALORE CITY IN C.C.NO.369/2018, ACQUITTING THE
RESPONDENTS/ACCUSED FOR THE OFFENCE P/U/S 138 OF THE
N.I. ACT.
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CRL.A No. 2298 of 2018
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The complaint/Appellant has preferred this appeal against
the judgment of acquittal passed by the XXIII Additional
C.M.M., Bengaluru City in CC.No.369/2018 dated 02.07.2018.
2. The rank of the parties in this appeal are referred in
the same rank as referred by the Trial court.
3. Learned counsel appearing on behalf of the
appellant has submitted his arguments that the trial Court has
not provided an opportunity to the complainant to prosecute
this case. The trial Court has passed this impugned judgment of
acquittal only on the ground that the complainant has not
turned up for cross-examination, which is not sustainable under
law. When the complainant remained absent, the trial Court
would have dismissed the complaint for non-prosecution.
Instead of that the trial Court has passed this impugned
judgment of acquittal. Hence, he sought to allow this appeal.
4. As against this, the learned counsel for the
respondent has submitted that the trial Court has passed this
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impugned judgment of acquittal in accordance with law and
facts and there are no grounds to interfere with the impugned
judgment. Hence, sought for dismissal of the appeal.
5. Having heard the arguments on both sides, the
following points would arise for the consideration:
1) Whether the complainant/appellant has made out a
ground to allow this appeal?
2) What order?
My answer to the above points are as under:
Point No.(1) : In the affirmative,
Point No.(2) : As per final order.
6. Reasons to issue No.1:
i. I have carefully examined the impugned judgment in
para Nos.10 to 14. The trial Court has observed as under:
"10. On going through the materials available on record
coupled with order sheet in detail, it discloses that, on
22.12.2017 the complainant was examined as PW.1 and
got marked documents at Exs.Pl to P6(a). Thereafter,
the accused appeared before this court and obtained the
bail, and plea was recorded and he denied the same and
claimed to have the defence. The accused for cross of
PW.1 has not submitted the required application under
Section 145(2) of Negotiable Instruments Act. Hence,
the case stage is posted for defence evidence.
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11. On 16.03.2018 the complainant was present,
accused was also present, on the said day the accused
counsel filed applications under Section 311 of Cr.P.C
and 145(2) of Negotiable Instruments Act, seeking for
re-open the stage for cross of PW.1. The said
applications are came to be allowed with cost of Rs.200/-
and the case stage was reset for cross of PW.1 on
17.04.2018.
12. It is significant fact to note that, from 17.04.2018
onwards, such as on 17.04.2018, 06.06.2018 and
28.06.2018 the PW.1 was remained absent knowingfully
well that, the case stage was re-opened for his
examination. Since, he not turned up; his cross-
examination was taken as nil. In view of the decision
reported in 2014 AIR SCW 3462, the accused statement
under Section 313 of Cr.P.C. was dispensed with and the
accused counsel submitted he has no defence evidence,
hence the case stage is set for arguments.
13. On appraisal of materials, it is clearly discloses
that, the PW.1 despite known the date for him cross-
examination not come forward for tendering for cross-
examination. Without he is subjected for cross-
examination, the unilateral affidavit evidence is not at all
conclusive evidence and it is not fit or any appraisal.
Moreover, the evidence of PW.1 has to be no significant
role and the complainant himself fails to testify his case
by way of tendering cross- examination. Thereby, he ran
away from the proceedings without facing the defence of
the accused. Therefore, the very act of the complainant
is to be condemned and it is against the object of the
Act. Moreover, the alleged transaction put forth by the
complainant is fails to demonstrate that, he passed the
consideration of Rs.2,50,000/- to the accused, and in
turn, the accused handed over the cheque to him. When
he himself not tendered for cross-examination by the
accused, thereby avoided the cross-examination for the
best reasons known to him. The non tendering for cross-
examination discloses, in anticipation the accused
defence is avoided to enter into the witness box, itself
suffice that, the claim of the complainant is not correct.
The evidence of accused regarding denial of borrowing of
loan and issuance of cheque is not proved by the
complainant and he himself ran away from the witness
box by admitting the defence of the accused, thereby he
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himself disprove his own case, therefore it is considered
opinion of this court that, the accused is not guilt of the
offence punishable under Section 138 of Negotiable
Instruments Act. The complainant has utterly fails to
demonstrate his case, therefore there is no satisfactory
material to accept the case of the complainant. Hence,
the case of the complainant is not a ground to accept.
Contrary, the benefit of the doubt has to be given to the
accused and he is entitled for acquittal. As discussed
above, it does not require for more discussion with
regard to the subject matter involved in the present case
is the complainant has utterly fails to prove his case.
14. Thus, I hold that, the complainant has failed to
prove the case by rebutting the presumption envisaged
under Section 138 of Negotiable Instruments Act. The
complainant has failed to discharge the initial burden to
prove his contention as alleged in the complaint. Hence,
the complainant has not produced needed evidence to
prove that, amount of Rs.2,50,000/- legally recoverable
debt. Therefore, since the complainant has failed to
discharge the reverse burden, question of appreciating
other things and weakness of the accused is not a
ground to accept the claim of the complainant in its
entirety without the support of the substantial
documentary evidence pertaining to the said transaction.
The complainant fails to prove his case beyond all
reasonable doubt. As discussed above the complainant
has utterly fails to prove he guilt of the accused for the
offence punishable under Section 138 of Negotiable
Instruments Act. Accordingly, I answered the Point
Nos. 1 and 2 are Negative."
ii. A perusal of the observation made by the trial Court, it is
crystal clear that PW1 has not turned up for cross-
examination. When PW1 was not turned up for
prosecution, the trial Court ought to have dismissed the
complaint for non-prosecution, instead of that the trial
Court has passed impugned the judgment of acquittal on
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merits, which is not sustainable under law. Hence, I
answer point No.1 in affirmative. Point No.2 for the
aforesaid reasons and discussions, I proceed to pass the
following:
ORDER
1. The appeal is allowed.
2. The judgment of acquittal passed in
CC.No.369/2018 dated 02.07.2018 on
the file of XXIII Additional C.M.M,
Bengaluru City, is set-aside.
3. The case is remitted to the trial Court
with a direction to provide an
opportunity to PW1 to tender his
evidence for cross-examination.
4. Trial Court is also directed to provide an
opportunity to both parties to adduce
evidence. Thereafter, the trial Court
shall dispose off the case in accordance
with law.
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5. Both parties are directed to appear
before the trial Court without seeking
any further notice from the trial Court
on 13.12.2023.
6. Registry is directed to send a copy of
this judgment to the concerned trial
Court for taking necessary action.
s
Sd/-
JUDGE
PK
CT: BHK
