Mr. C P Rajanna vs Sri. E Chandrappa
2023 Latest Caselaw 7241 Kant

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    IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 12TH DAY OF OCTOBER, 2023

                         BEFORE

             THE HON'BLE MRS.JUSTICE M.G. UMA

       CRIMINAL REVISION PETITION NO.621/2020
BETWEEN:
MR. C.P. RAJANNA
S/O. PUTTAIAH,
AGED ABOUT 51 YEARS,
RESIDING AT NO.115,
SNEHA NILAYA,
CHINNAKURCHI VILLAGE,
K. GOLIAHALLI POST,
KENGERI HOBLI,
BENGALURU - 560 067.
                                                ... PETITIONER
(BY SMT: SHAHIDA KHANAM. J. AND
    SRI: MASKOOR HASHMI .M.D. ADVOCATES)

AND:
SRI. E. CHANDRAPPA
S/O. LATE ESHWARAPPA
AGED ABOUT 67 YEARS
R/AT NO. 19, 9TH MAIN ROAD,
J.P. NAGAR, 2ND STAGE,
BENGALURU - 560 078.
                                            ... RESPONDENT
(BY SRI: B.V. VEERA ARAVIND, ADVOCATE (ABSENT))

      THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 READ WITH SECTION 401 OF CR.P.C. PRAYING TO
SET ASIDE THE IMPUGNED JUDGMENT DATED 27.08.2020 PASSED
IN CRL.A.NO.994/2017 ON THE FILE OF THE LXIX ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE (CCH-70) BANGALORE
CONFIRMING THE ORDER OF CONVICTION PASSED BY THE
LEARNED XVI A.C.M.M., BANGALORE DATED 17.06.2017 IN
C.C.NO.1913/2015 CONVICTING THE APPELLANT FOR AN OFFENCE
PUNISHABLE UNDER SECTION 138 OF N.I ACT BY ALLOWING THIS
CRL.RP WHICH IS NECESSARY AND MAY REMAND THE MATTER
BACK TO LEARNED XVI A.C.M.M., BANGALORE.
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     THIS CRIMINAL REVISION PETITION HAVING BEEN HEARD
AND RESERVED FOR JUDGMENT ON 03.10.2023 COMING ON FOR
PRONOUNCEMENT OF ORDERS THIS DAY, THE COURT PASSED THE
FOLLOWING:

                            ORDER

The accused in CC No.1913 of 2015 on the file of the

learned XVI Additional Chief Metropolitan Magistrate at

Bengaluru City (hereinafter referred to as 'the Trial Court' for

brevity), is impugning the judgment of conviction and order of

sentence dated 17.06.2017 convicting him for the offence

punishable under Section 138 of the Negotiable Instruments

Act (for short 'NI Act') and sentencing to pay a fine of

Rs.28,50,000/-, in default to pay fine, to undergo simple

imprisonment for a period of one year, which was confirmed

vide judgment dated 27.08.2020 passed in Criminal Appeal

No.994 of 2017 on the file of the learned LXIX Additional City

Civil and Sessions Judge(CCH 70) (hereinafter referred to as

'the First Appellate Court' for brevity), by dismissing the

appeal.

2. Brief facts of the case are that, the complainant

has filed the complaint in PCR No.769 of 2013 against the

accused alleging commission of offence punishable under

Section 138 of N.I Act. It is alleged that the accused and the

complainant were good friends. The accused offered to sell

his land bearing Sy.No.47, Khata No.18, New R.Sy.No.91

situated at K.Gollahalli Post, Chinnakurchi Village, Kengeri

Hobli, Bangalore South Taluk, measuring 2 acres to the

complainant. The complainant agreed to purchase the said

land under agreement of sale dated 18.11.2010. As per the

terms of agreement, the accused had admitted that the said

land was part of litigation pending before the Deputy

Commissioner, Bengaluru and the accused along with his

family members had undertaken to convey the said land in

favour of the complainant after clearing all the litigation. The

accused and his family members have also undertaken that

they will not demand any advance amount until the said

litigation was cleared, but the accused during the intervening

period approached the complainant demanding money and

accordingly, the complainant paid a sum of Rs.27,50,000/- to

the accused i.e., Rs.5,00,000/- by way of cheque dated

10.01.2011, Rs.4,50,000/- by way of cheque dated

02.05.2011 and Rs.18,00,000/- by way of cash. The accused

acknowledged the receipt of the said amount of

Rs.27,50,000/- and renewed the sale agreement dated

10.01.2011 and 02.05.2011. The accused and his family

members did not got cleared the litigation pending in respect

of the said land and therefore, the complainant demanded to

return the amount of Rs.27,50,000/-. On repeated requests,

the accused issued the cheque bearing No.781721 dated

09.10.2012 drawn on State Bank of India, Kengeri Branch in

favour of the complainant for a sum of Rs.27,50,000/-. When

the said cheque was presented for encashment, the same was

dishonored as there was insufficient funds in the account of

the accused. The complainant got issued legal notice

informing the accused regarding dishonor of the cheque and

calling upon him to repay the cheque amount. The said notice

was served on the accused, but he has not repaid the cheque

amount nor issued any reply. Thereby, the accused has

committed the offence punishable under Section 138 of N.I

Act. Accordingly, the complainant requested the Trial Court to

take cognizance of the offence and to initiate legal action

against the accused.

3. The Trial Court took cognizance of the offence,

registered CC No.1913 of 2015 and summoned the accused to

appear before the Court. The accused appeared before the

Trial Court in response to the summons and pleaded not guilty

for the accusation made against him. The complainant

examined himself as PW1 and got marked Exs.P1 to P7 in

support of his contention. The accused has denied all the

incriminating materials available on record in his statement

recorded under Section 313 of Cr.P.C., but has not chosen to

lead any evidence in support of his defence. The Trial Court

after taking into consideration all these materials on record,

came to the conclusion that the complainant is successful in

proving the guilt of the accused beyond reasonable doubt.

Accordingly, passed the impugned judgment of conviction and

order of sentence, convicting the accused and sentencing him

as stated above.

4. Being aggrieved by the same, the accused

preferred Criminal Appeal No.994 of 2017. The First Appellate

Court on re-appreciation of the materials on record, dismissed

the appeal by confirming the impugned judgment of

conviction and order of sentence passed by the Trial Court.

5. Being aggrieved by the same, the accused is

before this Court.

6. Heard Sri Maskoor Hashmi M.D and Smt. Shahida

Khanam J, learned counsel for the revision petitioner.

Learned counsel for the respondent remained absent in spite

of providing sufficient opportunity. Hence, his arguments is

taken as NIL. Perused the materials including the Trial Court

records.

7. Learned counsel for the revision petitioner

contended that the accused has disputed regarding the

agreement of sale said to have been executed in respect of

the land in question. Even though, the complainant refers to

the agreement dated 18.11.2010, the said agreement was not

produced before the Court and only the agreement dated

10.01.2010 and 02.05.2011 were produced before the Trial

Court as per Exs.P1 and P2. Even if Ex.P2 is to be accepted, a

total sum of Rs.15,00,000/- is said to have been paid to the

accused, but the cheque in question is Rs.27,50,000/-. The

contention of the complainant that he had paid

Rs.18,00,000/- in cash cannot be accepted, as no materials

are placed before the court in support of the same.

8. Learned counsel further submitted that even

though the complainant examined himself as PW1, the

accused could not cross-examine the witness, since the

revision petition against the order of the Trial Court passed on

the application filed under Section 91 of Cr.P.C was pending

before this Court. In the meantime, the Trial Court rejected

the prayer for granting time for cross-examination of PW1 and

proceeded to pass the impugned judgment of conviction and

order of sentence. Therefore, no reasonable opportunity was

given to the accused to prove his defence. Hence, he prays

for remanding back the matter to the Trial Court, in interest of

justice.

9. Learned counsel further submitted that the

revision petitioner is ready and willing to pay a reasonable

cost, if the matter is remanded back to the Trial Court and he

has produced the copy of demand draft for Rs.10,000/- drawn

in the favour of Registrar General, High Court of Karnataka,

payable to PW1 if in case, he is recalled for cross-

examination. Hence, he prays for allowing of the revision

petition and to set aside the impugned judgment of conviction

and order of sentence passed by the Trial Court.

10. In view of the rival contentions urged by the

learned counsel for the revision petitioner, the point that

would arise for my consideration is:

"Whether the revision petitioner has made out any ground to allow and remand the matter back to the Trial Court for recalling PW1 for his cross examination and to lead his defence evidence?"

My answer to the above point is in the 'Affirmative' for the

following:

REASONS

11. It is the specific contention of the complainant

that the accused was the owner of 2 acres of land in Sy No.47

Khatha No.18 and new Sy No.91 at Gollahalli Village, and had

agreed to sell the same to the complainant and the

agreement of sale was entered into between them on

18.11.2010. Since the land was having litigation, the accused

agreed not to demand for advance amount, but however, at a

later point of time i.e., on 10.01.2011, the accused has

received Rs.5,00,000/- by way of cheque and on 02.05.2011,

he received another sum Rs.4,50,000/- by way of cheque.

The accused has also received Rs.18,00,000/- by way of cash.

Thus, he received in all Rs.27,50,000/- as advance and

acknowledged the receipt on the sale agreement and renewed

the sale agreement dated 10.01.2011 and 02.05.2011. When

the accused was not ready and willing to execute the sale

deed, the complainant demanded the advance amount of

Rs.27,50,000/- and accordingly, the accused issued the

cheque in question for Rs.27,50,000/- towards repayment of

the advance amount. The said cheque was dishonored as

funds insufficient. In spite of issuing legal notice, the cheque

amount was not paid and thereby, the accused committed the

offence punishable under Section 138 of N.I. Act.

12. The complainant examined himself as PW1 and

re-iterated his contentions as taken in the complaint by filing

the affidavit in lieu of examination-in-chief. He got marked

Exs.P1 to P7 in support of his contention. The accused has

not cross examined the witness. The Trial Court recorded the

submission made by the learned counsel for the accused that

a revision petition is filed before this Court against the order

dated 19.09.2016 passed by the Trial Court and therefore,

time was sought for cross-examining PW1. However, since

there was no stay granted by this Court in the revision

petition, the Trial Court proceeded to note that PW1 was not

cross-examined and proceeded to record the statement of the

accused under Section 313 of Cr.P.C., where the accused has

denied all the incriminating materials available on record, but

he has not adduced any evidence in support of his defence.

Thus, the impugned judgment of conviction and order of

sentence came to be passed.

13. Ex.P1 is the additional agreement for sale dated

10.01.2021 said to have been entered into by the complainant

and the accused, where the accused has endorsed and

acknowledged the receipt of Rs.5,00,000/- on 10.01.2011 by

way of cheque, undertook to execute the sale deed after

resolving the dispute after getting permission from the

Government by accepting balance consideration amount of

Rs.30,00,000/-. There is reference to the proceedings

pending in KSC/ST PTCL Appeal No.125/2009-10 before the

Deputy Commissioner.

14. Ex.P2 is one more agreement dated 02.05.2011

executed by the accused and his family members, where

there is reference to the agreement for sale dated

18.11.2010, acknowledging the receipt of Rs.4,50,000/- on

the same day by way of cheque and again undertaking to

execute the sale deed after clearance of the dispute pending

before the Deputy Commissioner. In this agreement, there is

acknowledgement made by the accused and the complainant

to the effect that the accused has already received a sum of

Rs.14,50,000/- and received Rs.50,000/- by way of cheque.

15. Ex.P3 is the cheque in question dated 09.10.2012

said to have been issued by the accused in favour of the

complainant for Rs.27,50,000/-. Ex.P4 is the endorsement

issued by the banker intimating regarding dishonor of the

cheque as funds insufficient. Ex.P5 is the endorsement by the

collecting banker informing the complainant regarding

dishonor of the cheque for the above said reason. Ex.P6 is

the legal notice dated 24.12.2012 issued by the complainant

to the accused informing him about dishonor of the cheque

and calling upon him to pay the cheque amount. Ex.P7 is the

postal acknowledgement for having served notice on the

accused.

16. Now, it is the contention of the accused that PW1

could not be cross examined by the accused as criminal

revision petition against the order dated 19.09.2016 was

pending before this Court. However, the accused is having

valid defence to contest the matter. Even though, separate

agreements as per Exs.P1 and P2 came to be executed while

receiving the advance amount of Rs.5,00,000/- and

Rs.4,50,000/- respectively on 10.01.2011 and 02.05.2011,

they have endorsed on Ex.P2 stating that on 05.09.2011, as

agreed on the agreement dated 02.05.2011, the accused has

already received Rs.14,50,000/- and encashed Rs.50,000/-

through cheque, but there was no such agreement executed

by the accused for having received huge sum of

Rs.14,50,000/- said to have been given in cash.

17. In that regard, the accused intends to cross

examine PW1 and to lead his evidence in support of his

defence. Learned counsel for the revision petitioner with

instructions from his client submitted that, PW1 is very much

available in the town for cross examination. It is the

contention of the complainant that he had paid huge amount

of Rs.18,00,000/- in cash to the accused, when Rs.5,00,000/-

and 4,50,000/- were given through cheque under Ex.P1.

Ex.P3 - cheque is dated 09.10.2012. The private complaint

was filed during 2013. Therefore, 10 years is already lapsed.

Under such circumstances, I deem it appropriate to provide

an opportunity to the accused to cross examine PW1 and to

lead his evidence in support of his defence, subject to

payment of cost of Rs.10,000/- to be paid by the accused to

PW1.

18. Hence, I answer the above point in the

'Affirmative' and proceed to pass the following:

ORDER

(i) The Criminal Revision Petition is allowed subject

to cost of Rs.10,000/-.

(ii) The judgment of conviction and order of sentence

dated 17.06.2017 passed in CC No.1913 of 2015 on the file of

the learned XVI Additional Chief Metropolitan Magistrate at

Bengaluru City, which was confirmed vide judgment dated

27.08.2020 passed in Criminal Appeal No.994 of 2017 on the

file of the learned LXIX Additional City Civil and Sessions

Judge(CCH 70), is hereby set aside.

(iii) The matter is remanded back to the Trial Court

with a direction to recall PW1 for the purpose of cross

examination by the accused. The accused is also permitted to

lead his evidence, if any, within a reasonable time. The Trial

Court shall dispose off the matter expeditiously atleast within

two months from the date of receipt of the records.

(iv) The accused shall make himself available before

the Trial Court on all the dates of hearing and make necessary

arrangements to cross examine PW1 on the day when he

appears before the Trial Court, without seeking any

adjournment.

(v) If the accused remains absent or if he fails to

make arrangements to cross examine PW1 on the date when

he appears before the Court or fails to lead his defence

evidence within a reasonable time, the Trial Court can proceed

to dispose off the matter on merits.

(v) The learned Registrar General is directed to

transmit Rs.10,000/- being the amount of the Demand draft

produced by the petitioner-accused, to the Trial Court towards

cost payable to PW1 on his appearance before the Trial Court

for cross examination.

Registry is directed to return the Trial Court records to

the Trial Court, forthwith, along with copy of this order.

Sd/-

JUDGE

RAK