Karnataka High Court
Sri P Channabasavaradhya Swamy vs S N Aswath Reddy on 22 November, 2023
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NC: 2023:KHC:42002
CRL.A No. 643 of 2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE G BASAVARAJA
CRIMINAL APPEAL NO. 643 OF 2014
BETWEEN:
SRI. P. CHANNABASAVARADHYA SWAMY,
S/O SIDDAVEERA SHASTRY,
AGED ABOUT 55 YEARS,
R/A NO.119, SRI. ANKALA-
SIDDESHWARA SWAMY MUTT,
K. KAMARAJ ROAD,
BANGALORE - 560 042.
...APPELLANT
(BY SRI. JAGADISH D. HIREMATH, ADVOCATE)
Digitally signed
by SANDHYA S AND:
Location: High
Court of
Karnataka S.N. ASWATH REDDY,
S/O LATE NARAYANAPPA,
AGED ABOUT 66 YEARS,
SINGANAYAKANAHALLI,
BANGALORE NORTH TALUK,
YELAHANKA HOBLI,
BANGALORE - 560 084.
...RESPONDENT
(BY SRI. G.R.LAKSHMIPATHI REDDY, ADVOCATE)
THIS CRL.A IS FILED U/S 378 OF CR.P.C PRAYING TO
SET ASIDE THE JUDGMENT AND ORDER DATED 06.06.2014
PASSED BY THE XV ADDL. JUDGE, COURT OF SMALL CAUSES
AND 23RD ADDL. CHIEF METROPOLITAN MAGISTRATE, MAYO
HALL UNIT, BANGALORE, IN C.C.NO.5160/2005 - ACQUITTING
THE RESPONDENT/ACCUSED FOR THE OFFENCE PUNISHABLE
UNDER SECTIONH 138 OF N.I. ACT.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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CRL.A No. 643 of 2014
JUDGMENT
The complainant/appellant has preferred this appeal
against the judgment of acquittal passed in
C.C.No.5160/2005 on the file of XV Addl. Judge, Court of
Small Causes and 23rd Addl. Chief Metropolitan Magistrate,
Mayo Hall Unit, Bangalore.
2. The rank of the parties in this appeal are
referred in the same rank as referred by the Trial court.
3. Brief facts of the complaint are that the accused
had issued a cheque for Rs.4,50,000/- for discharge of
advance amount paid by the complainant to him in respect
of purchase of a property. When the same was presented
to the bank for encashment, it was returned with shara
'funds insufficient'. Thereafter, complainant issued a legal
notice to the accused to pay the cheque amount. The
same was duly served on the accused. Instead of paying
the cheque amount, accused sent a untenable reply on
01.07.2004. Hence, the complainant lodged a complaint
on 24.07.2004 for the commission of an offence
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punishable under Section 138 of N.I. Act. The trial Court
has taken cognizance against the accused for the alleged
commission of offence and a case was registered in
C.C.No.5160/2005. Substance of accusation was recorded.
Accused pleaded not guilty and claimed to be tried.
4. To prove the case of the complainant, one
witness was examined as PW.1 and 22 documents were
marked as per Exs.P1 to P22. On closure of complainant's
side evidence, statement under Section 313 of Cr.P.C. was
recorded. Accused denied the evidence of PW.1. He has
adduced evidence as DW.1 and a copy of bank statement
was marked as Ex.D1. On hearing the arguments, the trial
Court acquitted the accused on 31.03.2009.
5. Being aggrieved by this judgment of acquittal,
the complainant preferred an appeal before this Court in
Crl.A.No.428/2009. This Court vide order dated
11.12.2012 allowed the said appeal and the judgment and
order of acquittal was set aside. Matter was remitted to
trial Court with a direction to provide an opportunity to the
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parties and dispose it of in accordance with law.
Accordingly, it was remitted to the trial Court.
6. Thereafter, PW.2, another witness was
examined and DW.1 has adduced fresh evidence before
the trial Court. On hearing the arguments, the trial Court
has passed the impugned judgment of acquittal on
06.06.2014. Being aggrieved by the impugned judgment,
the complainant has preferred this appeal.
7. Learned counsel for the complainant/appellant
has submitted his arguments that the impugned judgment
passed by the trial Court is contrary to law and facts.
After completion of evidence, the trial Court has recorded
the statement of accused. In respect of evidence of PW.2,
accused has denied the evidence of PW.2 and he has
adduced fresh evidence as DW.1. Further, he has
submitted that now the complainant has produced
documents along with application filed under Section
391(1) of Cr.P.C., which are very much required to
adjudicate the matter in dispute. The additional evidence
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is required to prove the legally recoverable debt. On these
grounds, he sought for allowing this appeal.
8. Learned counsel appearing on behalf of the
respondent/accused has submitted his arguments that the
impugned judgment passed by the trial Court is in
accordance with law and facts, that there are no grounds
to interfere with the impugned judgment of acquittal and
also to allow the application filed under Section 391(1) of
Cr.P.C. On these grounds, he sought for dismissal the
appeal.
9. Having heard the arguments and perusal of
records, following points would arise for my consideration:
1. Whether the complainant/appellant
has made out a ground to allow this appeal and
application filed under Section 391(1) of
Cr.P.C.?
2. What order?
10. My answer to the above points are under:
1. Affirmative;
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2. As per final order.
11. I have carefully examined the materials placed
before this Court. In page No.19 of the impugned
judgment, the trial Court has observed that the burden
shifts on the shoulder of the complainant to prove that the
cheque in question issued by the accused is towards
alleged Sale Agreement transaction by proving the fact of
existence of debt or liability. But to substantiate the said
fact, the complainant has not produced any convincing and
cogent evidence.
12. In order to prove the existence of legally
recoverable debt, the complainant/appellant has now
produced the document copy of the Sale Agreement Deed
dated 04.01.1999 effected between accused and the
complainant. Another document is produced i.e.
Agreement for Sale Deed dated 12.09.2006 to prove his
financial capacity of the complainant. Another document is
also filed i.e. Absolute Sale Deed dated 25.09.1997 and
the certified copy of the compromise petition filed in
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O.S.No.423/1992 and the bank account extract. In the
application it is stated that the proposed documents
produced along with I.A. filed under Section 391(1) of
Cr.P.C. are very much required to prove the case of the
complaint. This application is supported with the affidavit
of Sri.P.Channabasavaradhya Swamy, in which, he has
stated that the trial Court has not provided an opportunity
to adduce further evidence of PW.1 after remanding the
matter to trial Court. On these grounds, he sought to allow
this application.
13. Learned counsel for the accused/respondent
has not filed any objection to this application but he has
orally opposed this application contending that the
additional evidence is not required to adjudicate the
matter in dispute.
14. Considering the facts and circumstances of the
case and also the opinion expressed by the trial Court, it is
just and proper to provide an opportunity to the
appellant/complainant to adduce his additional evidence.
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Hence, I answer the aforesaid point No.1 in affirmative
and regarding point No.2, for the aforesaid reasons and
discussions, I proceed to pass the following:
ORDER
1. The appeal is allowed;
2. The application filed under Section 391(1) of
Cr.P.C. is allowed;
3. The impugned judgment passed by the XV
Additional Judge, Court of Small Causes & 23rd
ACMM, Mayo Hall Unit, Bengaluru in
C.C.No.5160/2005 dated 06.06.2014 is set
aside;
4. The case is remitted to trial Court with a
direction to provide an opportunity to the
complainant to adduce his oral and
documentary evidence. Thereafter, the trial
Court shall dispose of the case in accordance
with law.
5. Registry is directed to send the documents
produced by the appellant/complainant along
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with application filed under Section 391(1) of
Cr.P.C. to the concerned trial Court;
6. After adducing the additional evidence of
PW.1, accused is also at liberty to adduce his
additional defence evidence, if any;
7. The trial Court is directed to dispose of the
case within a period of six months from the
date of receipt of certified copy of this
judgment;
8. Both the parties shall appear before the trial
Court on 13.12.2023 without seeking any
further notice from the trial Court;
9. Registry is directed to send a copy of this
judgment along with TCR to the concerned
trial Court without causing any delay.
Sd/-
JUDGE
PGG
CT: BHK
