Karnataka High Court
Sri Pavan Kumar Jain vs V.M.S Apparels on 9 February, 2024
-1-
NC: 2024:KHC:5608
CRL.A No. 1060 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE ANIL B KATTI
CRIMINAL APPEAL NO. 1060 OF 2015 (A)
BETWEEN:
SRI PAVAN KUMAR JAIN
S/O SUVALAL JAIN,
AGED ABOUT 26 YEARS,
NO.224/B VIDYAPEETA ROAD,
KENGERI KOTE,
BANGALORE-60.
...APPELLANT
(BY SRI. MANOJ H.C., ADVOCATE FOR
SRI D.S. JAYARAJ, ADVOCATE)
Digitally AND:
signed by
SUMITHRA R
Location: V.M.S APPARELS
HIGH COURT NO.50/6, RAILWAY GATE ROAD,
OF PANTHRAPALYA, REP. BY RAMESH,
KARNATAKA
NEAR VARSHAN PARTY HALL,
BANGALORE-560039
BY ITS PROPRIETOR
SRI RAMESH
...RESPONDENT
(BY SRI. T R RAMAKRISHNA, ADVOCATE (ABSENT)
THIS CRL.A. FILED U/S.378(4) CR.P.C BY THE ADV. FOR
THE APPELLANT PRAYING THAT THIS HON'BLE COURT MAY BE
PLEASED TO SET ASIDE THE JUDGMENT DATED 10.7.2015
PASSED BY THE XXII A.C.M.M., BANGALORE IN
-2-
NC: 2024:KHC:5608
CRL.A No. 1060 of 2015
C.C.NO.13203/2014-ACQUITTING THE RESPONDENT/
ACCUSED FOR THE OFFENCE P/U/S 138 OF N.I.ACT.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Appellant/complainant feeling aggrieved by judgment
of Trial Court on the file of XXII A.C.M.M., Bangalore in
C.C.No.13203/2014 dated 10.07.2015 preferred this
appeal.
2. Parties to the appeal are referred with their
ranks as assigned in the Trial Court for the sake of
convenience.
3. Heard the arguments.
4. After hearing arguments of both sides and on
perusal of Trial Court records, so also the impugned
judgment under appeal, the following points arise for
consideration:
1) Whether the impugned under appeal passed
by Trial Court in acquitting the accused for
the offence punishable under Section 138 of
NC: 2024:KHC:5608
N.I.Act is perverse, capricious and legally not
sustainable?
2) Whether any interference of this Court is
required?
5. On careful perusal of oral and documentary
evidence placed on record, it would go to show that
accused is friend of complainant. Accused was carrying
garments business as proprietor of VMS Apparels. Accused
for the purpose of his business needs borrowed an amount
of Rs.3,50,000/- from complainant during month of August
2013. Complainant has paid the said amount in the first
week of August 2013. Accused promised to repay the said
amount within a period of one month. Accused did not pay
the amount as agreed. Complainant requested for return
of his money. Accused in order to discharge legally
enforceable debt issued the cheque bearing No.167875
dated 13.08.2013 drawn on Sri.M Vishweshwaraiah
Co-operative Bank Ltd. Rajarajeshwari nagara Branch,
BEML Layout, Bengaluru for Rs.3,50,000/- Ex.P.1.
Complainant presented the said cheque for encashment
NC: 2024:KHC:5608
through his banker Indian Bank, Kengeri branch,
Bengaluru and the same was dishonoured vide bank
endorsement Ex.P.2 dated 14.09.2013 as "Insufficient
Funds". Complainant issued demand notice dated
18.09.2013 Ex.P.3. The postal receipts are produced at
Exs.P.4 and 5. Complainant has written to the postal
authority regarding non receipt of acknowledgement card
for having served consignment dated 21.10.2013 Ex.P.6.
The postal authority has given reply Ex.P.7 that the
consignment is delivered on 23.09.2013 to the addressee.
6. The Trial Court has acquitted the accused on
the ground that PW.1 has not appeared before the Court
for the purpose of cross-examination in spite of giving
sufficient opportunities and secondly the demand notice
Ex.P.3 does not contain the signature of complainant. On
careful perusal of records of the Trial Court, it would go to
show that the Trial Court by order dated 05.06.2015 has
observed that PW.1 and accused absent, no
representation. Call later. reads a under:
NC: 2024:KHC:5608
Complainant and accused continuously
absent. In spite of imposing cost the presence of
Pw1 for the purpose of cross examination the
complainant did not turned up. The parties might
have compromise this case. Hence, the
complainant it's not turned up for the purpose of
cross examination. The complainant is not
interested to prosecute this case in accordance
with law. Hence, the evidence of PW.1 is
discarded. Case posted for defence evidence if
any by 03.07.2015.
On the said day the Court has noted the absence of
complainant and accused and there was no representation
from advocates and defence evidence was taken as nil, the
matter was posted for arguments on the next day dated
04.07.2015. On the said day Trial Court noted the
absence of both the counsels of complainant and accused
and no arguments advanced. Hence, arguments was taken
as nil, the matter was reserved for judgment on
11.07.2015.
NC: 2024:KHC:5608
7. Learned counsel for accused got advanced the
matter and filed an application under Section 311 of
Cr.P.C. to recall the order dated 05.06.2015 and sought
permission to cross-examine PW.1. The Trial Court by
order dated 09.07.2006 noted the absence of complainant
and accused was present. The Trial Court has rejected the
application by order dated 09.07.2015. On the next day
itself the impugned judgment under appeal came to be
passed acquitting the accused.
8. Learned counsel for complainant has endorsed
no objection to allow the application filed by accused
under Section 311 of Cr.P.C. However, in spite of it the
Trial Court has proceeded to reject the said application on
the premises that the evidence of PW.1 was discarded by
order dated 05.06.2015. Therefore, there was no question
of recalling PW.1 for cross-examination. It is pertinent to
note that the Trial Court not withstanding it's own order
dated 05.06.2015 and the order dated 09.07.2015 has
appreciated the evidence of PW.1 in the judgment. The
NC: 2024:KHC:5608
Trial Court has to follow the procedure contemplated in
chapter XX of Cr.P.C. for trial of summons cases by
Magistrate from Section 251 to 255. In terms of Section
254 of Cr.P.C. where the Magistrate does not convict the
accused under Section 252 or Section 253, the Magistrate
shall proceed to hear the prosecution and take all such
evidence as may be produced in support of the
prosecution, and also to hear the accused and take all
such evidence as he produces in his defence. It is only
thereafter on hearing both sides proceeded to pass
judgment. The Trial Court has adopted the procedure
unknown to law in disposing the matter without there
being any evidence, since the Trial Court by order dated
05.06.2015 has discarded the evidence of PW.1. The said
order was in force, even as on the date of pronouncement
of judgment which was well within the knowledge of Trial
Court Judge. However, in spite of it without there being
any legal evidence on record proceeded to dispose of the
matter on merits.
NC: 2024:KHC:5608
9. The Trial Court on the earlier occasion allowed
the application filed under Section 311 of Cr.P.C. dated
08.04.2015 subject to payment of cost of Rs.500/- and the
matter was ordered to call at 3.00 p.m. When the matter
was taken at 3.15 p.m. learned counsel for accused was
absent and cost not paid. The deposition would go to show
that, since accused and learned counsel remained absent
so also cost not paid, therefore cross-examination was
taken as nil. It means that PW.1 was very much available
for cross-examination. It is the counsel for accused who
did not chose to cross-examine PW.1 by paying cost.
Therefore, the finding recorded by Trial Court that PW.1
has not appeared before the Court for cross-examination
cannot be legally sustained.
10. The second ground on which the Trial Court
acquitted the accused is that complainant has not signed
the demand notice Ex.P.3. Complainant has engaged the
counsel to issue the demand notice and given the
authority to issue notice, further to take all steps in
NC: 2024:KHC:5608
accordance with law. Therefore, there is no question of
obtaining the signature of complainant on the demand
notice issued by counsel. The demand notice issued by
counsel under the due authority of the complainant is a
valid demand notice and complainant was not expected to
sign on the demand notice. It is also pertinent to note that
complainant himself did never question the authority of his
counsel in issuing the demand notice. Therefore, the said
finding of the Trial Court that complainant has not
complied Section 138(b) of N.I.Act by issuing valid
demand notice cannot be legally sustained.
11. The entire approach of Trial Court in disposing
of the present case is not in accordance with law and the
procedure contemplated in chapter XX for trial of
summons case in terms of Section 251 to 255 of Cr.P.C.,
has not been followed. In fact and in reality there is no
any legal evidence at all on record to dispose of the case
on merits. When the Trial Court itself observes by order
dated 05.06.2015 that the evidence of PW.1 is discarded,
- 10 -
NC: 2024:KHC:5608
then there was no question of posting the matter for
defence evidence. The question of posting the matter for
defence evidence would arise only when the complainant
discharges initial burden of proving the fact that cheque
Ex.P.1 was issued for lawful discharge of debt. It appears
that the learned Trial Judge has adopted undue haste in
disposing of the matter without there being any legal
evidence on record and the procedure adopted by Trial
Court in disposing of the case at any rate cannot be
legally sustained. Therefore, the finding recorded by Trial
Court in acquitting the accused is perverse, capricious and
legally not sustainable and the same needs to be
interfered by this Court. Consequently, proceed to pass
the following:
ORDER
Appeal filed by appellant/complainant is hereby
allowed.
The judgment of Trial Court on the file of XXII ACMM,
Bengaluru in C.C.No13203/2014 dated 10.07.2015 is
hereby set aside.
- 11 -
NC: 2024:KHC:5608
The matter is remanded to the Trial Court for
disposal of the same in accordance with law as
expeditiously as possible on giving top priority, since it is
a matter of 2015.
In order to avoid further delay in the matter, since
both the parties represented through their counsel are
directed to appear before the Trial Court on 12.03.2024
without there being any notice to receive further
instruction from the Trial Court.
Registry to send back the records to Trial Court with
a copy of this order.
SD/-
JUDGE
GSR
