Karnataka High Court
Mr Manojkumar vs M/S Chinmayi Hospital on 14 February, 2024
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CRL.A No. 736 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE ANIL B KATTI
CRIMINAL APPEAL NO. 736 OF 2015 (A)
BETWEEN:
1. MR. MANOJKUMAR
S/O BHAVALALRANKA ,
AGED ABOUT 29 YEARS,
RESIDENT OF NO.66,
B.T.STREET, ANCHEPET,
AVENUE ROAD CROSS,
BANGALORE- 53
2. MR.RISHAB JAIN
S/O PRAKASHCHAND JAIN,
AGED ABOUT 26 YEARS,
RESIDING AT NO.315,
11TH MAIN ROAD,
B.S.K. I STAGE,
2ND BLOCK, BANGALORE- 50
Digitally
signed by
SUMITHRA R ...APPELLANTS
(BY SRI. MOHAMMED USMAN SHAIKH, ADVOCATE)
Location:
HIGH COURT
OF AND:
KARNATAKA
1. M/S CHINMAYI HOSPITAL
NO.34, BRINDAVAN LAYOUT,
SUBRAMANYPURA MAIN ROAD,
BANGALORE- 560 061
2. MR.M.MUNIRAJU
MANAGING DIRECTOR
M/S CHINMAYI HOSPITAL,
NO.34, BRINDAVAN LAYOUT,
SUBRMANYPURA MAIN ROAD,
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CRL.A No. 736 of 2015
BANGALORE -560 061
AND ALSO AT
NO.1, GOWRINILAYA,
NEAR POST OFFICE,
DODDAKALLASANDRA,
AND ALSO AT SULUGUNTE POST,
MADAMANGALA VILLAGE,
BANGARAPET TALUK, KOLAR DISTRICT
KOLAR, KARNATAKA
...RESPONDENTS
(BY SRI.MANJUNATH S., ADVOCATE FOR
SRI.SHARATH S. GOWDA, ADVOCATE FOR R2
R1- SERVED- UNREPRESENTED)
THIS CRL.A. FILED U/S.378(4) CR.P.C., PLEASED TO SET
ASIDE THE JUDGMENT ORDER DATED 11.02.2015 PASSED BY
THE XXII A.C.M.M., BANGALORE, IN C.C.NO.8050/2009 -
ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE
P/U/S 138 OF N.I. ACT.
THIS APPEAL, COMING ON FOR ARGUMENTS, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Appellant/complainant feeling aggrieved by judgment
of Trial Court on the file of XXII Addl. Chief Metropolitan
Magistrate, Bengaluru in C.C.No.8050/2009 dated
11.02.2015 preferred this appeal.
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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 passed by Trial Court, 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 No.2 being proprietor of Chinmayi hospital issued
cheque bearing No.520531 dated 10.01.2009 for a sum of
Rs.3,00,000/- drawn on Canara Bank for lawful discharge
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of debt Ex.P.1. The said cheque on it's presentation by
complainant through his banker State Bank of Mysore was
dishonoured as "Funds Insufficient" vide bank
endorsement Ex.P.2. Complainant issued demand notice
dated 20.01.2009 Ex.P.3 through RPAD and under
certificate of posting. Under certificate of posting receipt is
produced at Ex.P.4 and the RPAD receipt are produced at
Exs.P.5 to 8. The demand notice is duly served to
respondent No.2 vide acknowledgement card produced at
Ex.P.9. Accused has not replied to the notice nor paid the
amount covered under cheque. Hence, complaint for the
offence punishable under Section 138 of Negotiable
Instruments Act, 1881 (hereinafter for brevity referred to
as "N.I.Act") came to be filed on 25.02.2009.
6. Learned counsel for complainant has argued
that the Trial Court has not heard the arguments of
complainant and accused and proceeded to dispose of the
case by pronouncing the judgment. The Trial Court has
also not given opportunity to complainant to mark the
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Xerox copy of the voucher which came to be allowed by
order of Trial Court dated 23.12.2014. It was brought to
the notice of Trial Court that C.C.No.8050/2009 has
clubbed with another case in C.C.No.10318/2009 which
can be found from endorsement made in order sheet
dated 28.01.2015. However, the Trial Court proceeded to
pronounce judgment on 11.02.2015. The Trial Court refers
to the application filed by complainant under Section 311
of Cr.P.C. and the said application came to be disposed of,
since it was filed after pronouncement of judgment. The
procedure adopted by Trial Court in disposing of the case
without hearing the arguments of both sides cannot be
legally sustained.
7. Per contra, learned counsel for accused seeks to
justify the judgment of Trial Court.
8. On perusal of the Trial Court records, it would
go to show that complainant filed an application under
Section 91 of Cr.P.C. to call for original vouchers of
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M/s Chinmayi Hospital dated 24.09.2008. The Trial Court
after hearing both sides by order dated 03.08.2013
allowed the said application, the matter was adjourned
from time to time for the said purpose. Complainant
thereafter filed an application under Section 65 of the
Evidence Act for seeking permission to mark the Xerox
copy of the voucher. The Trial Court has allowed the said
application by order dated 23.12.2014. Thereafter no
opportunity was given for the complainant to get mark the
Xerox copy of the voucher by leading further evidence in
view of it's own order dated 23.12.2014. The Trial Court in
it's entire judgment did not address it's own order dated
03.08.2013 and 23.12.2014 and proceeded to pass the
judgment.
9. The order sheet of Trial Court dated
28.01.2015 would go to show that the Trial Court has
recorded that "Both parties are absent, counsel also
absent when called at 3.20 p.m. Both the parties are
called out to address the arguments on merits. Hence
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arguments taken as nil and case was posted for judgment.
The Trial Court in it's judgment at para No.6 has observed
as under:
"Both the complainant and accused
counsel remained absent before this court,
failed to address their arguments before this
court. Hence both side arguments taken as
Nil".
The Trial Court having so observed proceeded to
reserve the matter for judgment. It means that Trial Court
has never heard the arguments of learned counsel for
complainant and accused.
10. In view of the punishment prescribed for the
offence punishable under Section 138 of N.I. Act, the
same is required to be tried as summons case in terms of
chapter XX of Cr.P.C. from Section 251 to 255. In terms of
Section 254 of Cr.P.C., if the Magistrate does not convict
the accused under Section 252 or Section 253 of Cr.P.C.,
the magistrate shall proceed to hear the prosecution and
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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
thereafter taking such evidence on record the Magistrate
has to pass judgment of acquittal or conviction in terms of
Section 255 of Cr.P.C. It is true that no any specific stage
in fixed in terms of Section 251 to 255 of Cr.P.C. for
hearing arguments after concluding the defence evidence.
The Trial Court first of all after taking all such evidence by
both the parties opportunity of being heard is required to
be given. Though the stage of arguments is not referred in
a case tried as summons trial covered under chapter XX of
Section 251 to 255 of Cr.P.C., it is profitable to take note
of Section 314 of Cr.P.C., it reads as follows:
"Section 314. Oral arguments and
memorandum of arguments.-(1) Any party to a
proceeding may, as soon as may be, after the close
of his evidence, address concise oral arguments,
and may, before he concludes the oral arguments,
if any, submit a memorandum to the Court setting
forth concisely and under distinct headings, the
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arguments in support of his case and every such
memorandum shall form part of the record.
(2) A copy of every such memorandum shall be
simultaneously furnished to the opposite party.
(3) No adjournment of the proceedings shall be
granted for the purpose of filing the written
arguments unless the Court, for reasons to be
recorded in writing, considers it necessary to grant
such adjournment.
(4) The Court may, if it is of opinion that the oral
arguments are not concise or relevant, regulate
such arguments".
On plain reading of Section 314 of Cr.P.C. it would
manifestly makes it clear that said proviso do not make
any distinction between summons trial and warrant trial.
Therefore, in every case of summons or warrant trial, the
hearing of arguments of both sides is required in terms of
Section 314 of Cr.P.C. It is obligatory on the part of Trial
Court to hear the arguments of both sides and then to
proceed for pronouncement of judgment after appreciating
the evidence on record. This exercise has not been
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admittedly done by the Trial Court while disposing of the
case on merits. Secondly, the Trial Court has also not
taken into consideration the effect of it's own order dated
03.08.2013 and 23.12.2014 nor provided any opportunity
to the complainant to adduce further evidence in marking
the Xerox copy of the voucher produced by accused.
11. It could be borne out from records of the Trial
Court that the present case in C.C.No.8050/2009 was
clubbed with another case in C.C.No.10318/2009 was
brought to the notice of Trial Court and there is necessary
endorsement to that effect for the offence punishable
under Section 138 of N.I.Act. However Trial Court in spite
of that did not chose to verify the same and proceeded to
pass the judgment. Learned counsel for complainant and
accused during the course of their arguments have
submitted that as on the date of 28.01.2015 the
connected case in C.C.No.10318/2009 was very much
pending on the file of same Court. The Trial Judge before
proceeding to reserve the matter for judgment could have
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verify from the connected case that in fact whether there
is such order of clubbing C.C.No.8050/2009 with
C.C.No.10318/2009. The application filed by the
complainant under Section 311 of Cr.P.C. came to be
disposed of, since the same was filed after pronouncement
of judgment.
12. Learned counsel for complainant and accused
also concedes to the fact that connected
C.C.No.10318/2009 has been subsequently disposed of by
Trial Court vide judgment dated 06.06.2015. The said
judgment was challenged by accused before the First
Appellate Court on the file of Prl.City Civil and Sessions
Judge, Bengaluru in Crl.A.No.918/2015. The said appeal
came to be dismissed and the judgment of Trial Court
came to be confirmed. The learned counsel for
complainant has filed memo and produced computer
generated copy of the First Appellate Court judgment.
Therefore, in view of disposal of the connected case in
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C.C.No.10318/2019, the Trial Court has to now
independently appreciate the evidence on record.
13. In view of the reasons recorded as above and
the fact that the Trial Court did not hear the arguments of
both sides, the procedure adopted by Trial Court in
disposing of the case by pronouncing the judgment on
merits cannot be legally sustained. Therefore, interference
of this Court is required. Consequently proceed to pass the
following:
ORDER
Appeal filed by appellant/complainant is here by
allowed.
The judgment of Trial Court on the file of XXII ACMM,
Bengaluru in C.C.No.8050/2009 dated 11.02.2015 is
hereby set aside.
The matter is remanded to Trial Court for disposal of
the same in accordance with law by giving suitable
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opportunities to both the parties in terms of the order
passed by Trial Court dated 03.08.2013 and 23.12.2014.
In order to avoid further delay in the matter, both
the parties who are now represented through their counsel
are directed to appear before the Trial Court on
14.03.2024 without there being any notice to receive
further instruction from the Trial Court. The Trial Court
should make it's endeavour to dispose of the case as
expeditiously as possible, since the matter is of the year
2009.
Registry to send back the records to Trial Court with
a copy of this order.
SD/-
JUDGE
GSR
