Karnataka High Court
Smt Manasa M vs Smt Hemavathi B on 13 February, 2024
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CRL.A.No.1133 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE ANIL B KATTI
CRIMINAL APPEAL No.1133 OF 2015(A)
BETWEEN:
SMT. MANASA .M
WIFE OF SRI. SARAVANAM,
AGED ABOUT 30 YEARS,
RESIDING AT NO.V-737, 9TH MAIN
3RD BLOCK, 2ND STAGE,
BASAVESHWARANAGAR,
BENGALURU-560 079.
...APPELLANT
(BY SRI. V. KRISHNA MURTHY, ADVOCATE)
AND:
SMT. HEMAVATHI .B,
WIFE OF SRI. RAGHAVENDRA,
AGED ABOUT 38 YEARS,
RESIDING AT NO.59, 1ST MAIN,
2ND CROSS, "SATHYA JAYALAKSHMI",
1ST FLOOR, MICO LAYOUT,
GELEYARABALAGA,
MAHALAKSHMIPURAM(WARD NO.68),
BANGALORE-560 086.
ALSO AT:
NO.121, A.G.B., "KUTEERAM",
2ND STAGE, ATMIYA,
GELEYARABALAGA,
MAHALAKSHMI LAYOUT,
BENGALURU-560 086.
...RESPONDENT
(BY SRI. V. PRABHAKAR, ADVOCATE)
THIS APPEAL IS FILED UNDER SECTION 378(4) OF CODE OF
CRIMINAL PROCEDURE, PRAYING TO SET ASIDE THE JUDGMENT
DATED 11.06.2015 PASSED BY THE XXII A.C.M.M., BENGALURU
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CRL.A.No.1133 of 2015
CITY IN C.C.NO.19047/2014-ACQUITTING THE
RESPONDENT/ACCUSED FOR THE OFFENCE P/U/S 138 OF N.I.
ACT.
THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
07.02.2024, COMING ON FOR PRONOUNCEMENT OF JUDGMENT
THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:
JUDGMENT
Appellant/complainant feeling aggrieved by judgment
of Trial Court on the file of XXII A.C.M.M., Bengaluru City in
C.C.NO.19047/2014 dated 11.06.2015 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 of both sides.
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 judgment under appeal
passed by Trial Court in acquitting the accused
for the offence punishable under Section 138 of
N.I.Act is perverse, capricious and legally not
sustainable?
2) Whether 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 has borrowed hand loan of Rs.57,00,000/- from
complainant to overcome her financial difficulties. Accused
in order to discharge the said legally enforceable debt
issued cheque bearing No.658955 dated 04.04.2014
drawn on Indian Overseas Bank Mahalakshmipuram
branch, Bengaluru for Rs.40,00,000/- dated 04.04.2014,
Ex.P.1. Complainant presented the said cheque for
collection through her banker State Bank of India Sane
Guruvanahalli for encashment and the same was
dishonoured as "funds insufficient" vide bank endorsement
Ex.P.2. Complainant issued demand notice dated
24.04.2014 Ex.P.3 through RPAD and postal receipt is
produced at Exs.P.4 and 5. The demand notice is duly
served to accused and the acknowledgement card Ex.P.6.
Accused has replied to the demand notice of complainant
dated 15.05.2014, Ex.P.7.
6. Learned counsel for complainant has argued
that accused has admitted availing of loan in the complaint
filed before Police Commissioner Ex.P.8. It is also further
argued that the Trial Court has not given opportunity to
learned counsel for complainant to address the arguments
and proceeded to pass the judgment without hearing
complainant.
7. Per contra, learned counsel for accused has
argued that in spite of giving sufficient opportunities
complainant did not chose to address any arguments. The
source of income of complainant to advance huge sum of
Rs.40,00,000/- has not been proved by complainant.
8. The grievance of learned counsel for
complainant is that no opportunity was given by the Trial
Court to address the arguments. After rejecting application
filed under Section 309 of Cr.P.C. vide order dated
09.06.2015 proceeded to pronounce the judgment on
11.06.2015. In this regard learned counsel for complainant
invited the attention of the Court to the observation of the
Trial Court in para 5 of it's judgment that complainant in
spite of sufficient opportunity failed to appear before this
Court and address the arguments on merits and hence,
their side arguments taken as NIL. In support of the case
of accused, the learned counsel for accused submitted
written arguments by narrating the facts and
circumstances of the case. The Trial Court by accepting
the rebuttal evidence proceeded to pass the judgment in
acquitting the accused.
9. On perusal of Trial Court records, it would go to
show that on 26.05.2015 learned counsel for complainant
filed an application under Section 91 of Cr.P.C. to
summon Mahalakshmi layout Police Station and to produce
original complaint Ex.P.8. The said application after
hearing both sides came to be rejected by order dated
28.05.2015. The matter was posted for arguments on
01.06.2015. On the said day, the Trial Court has observed
that complainant counsel is absent and no arguments was
advanced. Hence, complainant's argument was taken as
nil and posted matter for judgment on 11.06.2015. The
matter was advanced on 08.06.2015 and learned counsel
for complainant filed an application under Section 309 of
Cr.P.C. and sought permission to address the arguments
by recalling the order dated 01.06.2015. The said
application came to be rejected by order of the Trial Court
dated 09.06.2015, on that day the Trial Court has
observed that complainant and counsel absent, no
arguments advanced posted for judgment.
10. The operative portion of the Trial Court order
dated 09.06.2015 reads as follows:
The application filed under Section 309 of
Cr.P.C. filed by on behalf of advocate for
complainant for advancement of this case from
11.06.2015 to 09.06.2015 is hereby rejected. No
costs.
However, the advocate for complainant is at
liability to address the argument on merit without
taking unnecessary adjournment. Accordingly
directed to do so.
When the matter was reserved for orders on
application filed under Section 309 of Cr.P.C., there was
no occasion for complainant or complainant's counsel to be
present before Court. Therefore, the observation of the
Trial Court that the complainant's counsel absent and no
arguments addressed cannot be legally sustained. The
matter was again reserved for judgment would only
demonstrate the fact that Trial Court has hurriedly
proceeded to dispose of the case even without hearing
arguments of learned counsel for complainant.
11. The Trial Court while trying the summons case
has to follow the prescribed procedure covered under
chapter XX of Cr.P.C. from Section 251 to 255 of Cr.P.C.
In the present case, the perusal of Trial Court records
would go to show that the learned Trial Court judge has
not followed the procedure contemplated in chapter XX of
Cr.P.C. and arguments of learned counsel for complainant
has never been heard and proceeded to pass the judgment
of acquittal which cannot be legally sustained. The denial
of such opportunity to the counsel for complainant to
submit the arguments and proceeding to pass the
judgment cannot be legally sustained and therefore
interference of this Court is required. 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
A.C.M.M., Bengaluru City in C.C.NO.19047/2014 dated
11.06.2015 is hereby set aside.
The matter is remanded to the Trial Court for
disposal of the same in accordance with law on top priority
basis.
It is the matter of 2014 and already 10 years has
been passed. Therefore, in order to avoid further delay,
both the parties who have appeared through their counsel
in this appeal are directed to appear before the Trial Court
on 13.03.2024 without there being any notice from the
Trial Court to receive further direction from Trial Court.
Registry to send back the records to Trial Court with
a copy of this order forthwith.
Sd/-
JUDGE
GSR
