Karnataka High Court
S A Rahim vs H G Rajappa on 26 February, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2024:KHC:7898
CRL.RP No. 586 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
CRIMINAL REVISION PETITION NO. 586 OF 2017
BETWEEN:
1. S.A.RAHIM
S/O S.A.ALIM,
AGED ABOUT 52 YEARS,
PROP. SADATH ENTERPRISES,
HOLALUR, HOLALUR POST-577 216
SHIVAMOGGA TALUK & DISTRICT.
...PETITIONER
(BY SRI P.N.HARISH, ADVOCATE)
AND:
1. H.G.RAJAPPA
S/O SHEKARAPPA @ SHEKARAPPA GOWDA,
AGED ABOUT 38 YEARS,
AGRICULTURIST,
R/O HARAMAGHATTA VILLAGE-577 216
Digitally signed
by SHARANYA T SHIVAMOGGA TALUK & DISTRICT.
Location: HIGH ...RESPONDENT
COURT OF
KARNATAKA
(BY SRI G.M.CHANDRASHEKHAR, ADVOCATE)
THIS CRL.RP IS FILED U/S.397 R/W 401 OF CR.P.C
PRAYING TO SET ASIDE THE JUDGMENT AND ORDER PASSED
BY THE III ADDL. SESSIONS JUDGE, SHIVAMOGGA IN
CRL.A.NO.222/2015 DATED 09.01.2017 IN CONFIRMING THE
JUDGMENT AND ORDER OF CONVICTION PASSED BY THE
JMFC-II, SHIVAMOGGA IN C.C.NO.512/2014 DATED 4.05.2015
AND THEREBY DISMISS THE COMPLAINT IN C.C.NO.512/2014
ON THE FILE OF THE JMFC-II, SHIVAMOGGA BY ALLOWING
THIS REVISION PETITION.
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CRL.RP No. 586 of 2017
THIS PETITION, COMING ON FOR FINAL HEARING THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
Heard the learned counsel for the petitioner and also
the learned counsel for the respondent.
2. This revision petition is filed being aggrieved by
the judgment of conviction and confirmation passed by the
Trial Court for the offence punishable under Section 138 of
Negotiable Instruments Act, 1881.
3. The main contention urged in this revision
petition is that no opportunity is given to the petitioner to
cross-examine PW1 and the same is nothing but
miscarriage of justice. The court below failed to notice that
the complainant has not produced any document to show
that he has paid a sum of Rs.2,10,000/- to the accused. In
the absence of same, it is not possible to believe that a
sum of Rs.2,10,000/- has been paid to the accused. The
Trial Court also proceeded to record the conviction holding
that no evidence is led and also no request is made to
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cross-examine PW1 and hence, committed an error and it
requires interference. He also brought to the notice of the
court the order sheet dated 07.03.2015 which discloses
that accused appeared and sought for bail and the same
was granted subject to executing a bond for a sum of
Rs.25,000/- and a surety is also offered on the same day.
A plea was also recorded and the accused was pleaded not
guilty and on the same day, sworn affidavit of the
complainant is treated as evidence of the complainant. The
cheque is marked as Ex.P1 and other documents are
marked as Ex.P2 to Ex.P7. On the same day, statement of
the accused under Section 313 of Code of Criminal
Procedure, 1973 was also recorded and the matter was
posted for accused evidence by fixing the date as
25.03.2015. On that day, the accused was absent and
hence, taken as accused has not led any evidence and
posted the matter for arguments. On 10.04.2015, the
accused was absent and one more opportunity was given
to advance his arguments by adjourning the matter to
25.04.2015 and on the said date, again the accused
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remained absent and the arguments of learned counsel for
the complainant was heard and the matter was posted for
delivery of judgment on 04.05.2015. On 04.05.2015, the
judgment was pronounced and in a hurried manner, the
matter was taken up before the Trial Court and no
opportunity was given.
4. Per contra, the learned counsel appearing for
the respondent would submit that the documents, which
have been marked earlier at the time of sworn statement
and affidavit filed before the court, the same was taken as
evidence and the respondent did not request for cross-
examination of PW1 and has also not led any evidence and
even after posting of the matter for evidence, no
application is filed for recalling PW1 for cross examination.
No efforts are made and even after four adjournments
also, no such application is filed and the accused remained
absent.
5. Having heard the learned counsel for the
revision petitioner and also the learned counsel for the
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respondent and having taken note of the order sheet
dated 07.03.2015 which discloses that on the same day,
the accused has sought for bail and bail was granted
subject to executing a bond and also furnishing the surety.
The surety also furnished the surety on the same day and
the same was accepted and plea was recorded on the
same day and evidence of the complainant treating as the
evidence, documents are got marked as Ex.P1 to Ex.P7.
On the same day, statement of the accused under Section
313 was also recorded. Having perused the manner in
which the case was handled by the learned trial judge
without giving an opportunity to cross-examine the
witness and also on the same day, the counsel for the
accused has also not requested the court to give an
opportunity to cross-examine the witness PW1. It is also
clear that on 07.03.2015, the petitioner also was very
much present and on the very same day, he has furnished
the surety and also executed the bond and plea was also
recorded. Even he was present before the court and the
counsel did not cross-examine PW1 and in view of non
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cross-examination, statement under Section 313 of CR.P.C
was also recorded and subsequently, the accused did not
appear before the court. Having taken note of the fact that
accused/petitioner did not make any effort to recall the
witness and cross examine the witness, the First Appellate
Court also having considered the material on record comes
to the conclusion that the evidence of PW1 remained
unchallenged and uncontroverted, but made an
observation that inspite of granting sufficient opportunity
he has not made any venture to cross-examine PW1 nor
adduced any evidence in his defence, but fails to take note
of the fact that the accused appeared before the court and
bail was granted on the very same day and also on the
very same day, plea was recorded and complainant was
also examined and statement under Section 313 of Cr.P.C
was also recorded on the very same day and First
Appellate Court ought to have taken note of the said fact
into consideration and instead of that, it has taken note of
only Section 118A and Section 139 of the Act and comes
to the conclusion that the accused for discharging the
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burden of proof has not placed any material under the
statute and has not examined himself and confirmed the
judgment.
6. Having taken note of the factual aspects of the
case and also considering the order sheet, which clearly
reveals that on the very same day, accused appeared and
bail was granted to him and plea was also recorded and
also the complainant's earlier sworn statement was
treated as evidence and under Section 313 of Cr.P.C was
also recorded on the very day and no doubt, an
opportunity was given to lead evidence but evidence was
also not led and ultimately, the petitioner did not appear
even though four adjournment was granted. The fact that
principles of natural justice is not met by the trial court by
giving an opportunity to the appellant, the case was
decided and at the same time revision petitioner has also
not made any efforts to cross-examine PW1 or made any
application to recall the witness for cross-examination and
has not led any evidence. However, matter requires to be
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remanded to the trial court to consider the matter afresh.
However, taking into note the conduct of the petitioner
herein, it is clear that he has not assisted the court and
also not made any application for recalling of the witness
and to cross-examine the witness, hence, it is appropriate
to impose cost and remand the matter with a direction to
dispose of the matter in a time bound period. In view of
the discussions made above, I pass the following:
ORDER
(i) The criminal revision petition is allowed.
(ii) The impugned order is set aside. The learned
Trial Judge is directed to consider the matter
afresh in view of the observations made by
this court and decide the case within a period
of three months from 18.03.2024.
(iii) The petitioner and also the respondent are
directed to appear before the Trial Court
without expecting any notice from the
concerned court and from 18.03.2024, the
matter has to be disposed of and both the
parties along with the respective counsel to
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assist the Trial Court in disposal of the case in
a time bound period. The petitioner herein is
directed to pay costs of Rs.25,000/-. Out of
that, Rs.5,000/- vests with the State and
remaining Rs.20,000/- is payable to the
complainant respondent on or before
18.03.2024.
(iv) The registry is directed to transmit the records
forthwith to enable the Trial Court to take up
the matter without fail on 18.03.2024.
Sd/-
JUDGE
SS
