Karnataka High Court
K G Vijaya Kumar vs M/S Prakruti Building Products Limited on 3 January, 2024
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CRL.RP No. 659 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE G BASAVARAJA
CRIMINAL REVISION PETITION NO. 659 OF 2017
BETWEEN:
K G VIJAYA KUMAR
S/O LATE GADLAPPA SETTY
AGE 58 YEARS,
PROPRIETOR BASAVESHWARA
ENTERPRISES,OPP TO CANARA BANK
T.M.ROAD LAKKAVALLI
TARIKERE TALUK-577549
CHIKKAMAGALUR DISTRICT
...PETITIONER
(BY SRI. UMESH MOOLIMANI, ADVOCATE FOR
SRI. S V PRAKASH, ADVOCATE)
AND:
Digitally signed by
SANDHYA S
1. M/S PRAKRUTI BUILDING PRODUCTS LIMITED
Location: High
Court of HAVING ITS REGISTERED OFFICE AT NO.1047, D-
Karnataka
BLOCK, AECS LAYOUT, SIR M.V.NAGAR BENGALURU-
560037
AND ADMINISTRATIVE OFFICE AT
VASANTHI COMPLEX, NO.12, 1ST FLOOR,
MANGAMMANAPALYA MAIN ROAD,
BOMMANAHALLI, BENGALURU-560068
REPRESENTED BY ITS MANAGER AND GENERAL
POWER OF ATTORNEY HOLDER M.JAYARAMAN
...RESPONDENT
(RESPONDENT SERVED AND UNREPRESENTED)
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CRL.RP No. 659 of 2017
THIS CRIMINAL REVISION PETITION FILED U/S.397 R/W
401 CR.P.C BY THE ADVOCATE FOR THE PETITIONER PRAYING
THAT THIS HON'BLE COURT MAY BE PLEASED TO SET ASIDE
THE JUDGMENT AND ORDER DATED 3.5.2017 PASSED BY THE
II ADDITIONAL SESSIONS JUDGE, CHIKKAMAGALURU IN
CRL.A.NO.69/2016 CONFIRMING THE JUDGMENT AND ORDER
OF CONVICTION DATED 1.4.2016 PASSED BY THE CIVIL JUDGE
AND ADDITIONAL J.M.F.C., TARIKERE IN C.C.NO.803/2014 D
CONVICTING THE PETITIONER FOR THE OFFENCE P/U/S 138
OF N.I.ACT SENTENCING HIM TO UNDERGO S.I. FOR 6
MONTHS AND TO PAY FINE OF RS.1,62,372/- AND IN DEFAULT
TO PAY THE SAME TO UNDERGO S.I. FOR 3 MONTHS BY
ALLOWING THIS CRL.R.P.I.A.NO.1/2017 FOR SUSPENSION OF
SENTENCE AND BAIL.I.A.NO.1/2017 FILED BY THE ADVOCATE
FOR THE PETITIONER PRAYING TO SUSPEND THE SENTENCE
DATED 3.5.2017 PASSED BY THE II ADDITIONAL SESSIONS
JUDGE, CHIKKAMAGALURU IN CRL.A.NO.69/2016 CONFIRMING
THE JUDGMENT AND ORDER OF CONVICTION DATED 1.4.2016
PASSED BY THE CIVIL JUDGE AND ADDITIONAL J.M.F.C.,
TARIKERE IN C.C.NO.803/2014 CONVICTING THE PETITIONER
FOR THE OFFENCE P/U/S 138 OF N.I.ACT SENTENCING HIM TO
UNDERGO S.I. FOR 6 MONTHS AND TO PAY FINE OF
RS.1,62,372/- AND IN DEFAULT TO PAY THE SAME TO
UNDERGO S.I. FOR 3 MONTHS AND SUSPEND THE SENTENCE
AND ADMIT THE PETITIONER ON BAIL FOR THE REASONS
STATED THEREIN.
THIS PETITION, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
The revision petitioner has preferred this revision
petition against the judgment of conviction and order of
sentence dated 01.04.2016 passed in C.C.No.803/2014by
the Court of the Civil Judge and Additional JMFC, Tarikere
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(hereinafter referred to as 'Trial Court' for short) which is
confirmed by the judgment dated 03.05.2017 passed in
criminal appeal No.69/2019 by the Court of the II Addl.
Sessions Judge, Chikkamagaluru (hereinafter referred to
as 'Appellate Court' for short).
2. For the sake of convenience, the parties in this
appeal are referred to as per their status and rank before
the Trial Court.
3. The brief facts of the complaint is that the
complainant is a company incorporated under the
provisions of Indian Company Act carrying on business of
buying and selling of A.C. Sheets, cement and other
building materials. Accused No.2 is the proprietor of
accused No.1 firm and he is carrying the business under
the name and style of M/s. Sri. Basaveshwara Enterprises.
Accused used to approach their company to purchase the
asbestos cement sheet to their firm. Further, the
complainant company having faith and trust with the
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accused used to give the materials to the accused on
credit basis and a running account is maintained by the
company in the usual course of its business in respect of
the transaction with the accused. The accused has taken
asbestos cement sheet from its company on credit basis
and accused is in due Rs.1,46,372/-. When the
complainant company demanded the accused to clear the
said outstanding amount, the accused No.2 being the
proprietor of accused No.1 issued a cheque dated
18.08.2014 bearing NO.728484 for a sum of Rs.1,46,372/-
drawn on Canara Bank, Lakkavalli branch, Tarikere. The
said cheque returned unpaid with an endorsement 'funds
insufficient' when presented through his banker.
Thereafter, the complainant issued a legal notice dated
22.08.2014 demanding the accused to repay the said
amount, but the accused failed to pay the amount within
the stipulated period. Thus, the accused has committed
an offence punishable under Section 138 of Negotiable
Instruments Act, 1881 (hereinafter referred to as 'N.I.Act'
for short).
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4. After taking cognizance of the offence, the case
was registered in C.C.No.803/2014 and summons was
issued. In pursuance of summons, the accused appeared
before the Court and enlarged on bail. Charge framed and
read over and explained to the Accused. Having
understood the same accused pleaded not guilty and
claimed to be tried.
5. To prove the case of the complainant company,
GPA holder was examined as PW.1 and 13 documents
were got marked as Exs.P1 to 13. Thereafter, the
statement of the accused under Section 313 of Cr.P.C. was
recorded and the accused has denied the evidence of PW.1
and he has not adduced any evidence on his behalf. On
hearing the arguments on both sides, the Trial Court has
convicted the accused for the commission of offence
punishable under Section 138 of N.I.Act. and sentenced
him to undergo simple imprisonment for six months and
also to pay a fine of Rs.1,62,372/-. In default of payment
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of fine, to undergo simple imprisonment for a period of
three months.
6. Being aggrieved by the judgment of conviction
and order of sentence, the petitioner has preferred an
appeal in criminal appeal No.69/2016 and the same came
to be dismissed with cost of Rs.500/- on 03.05.2017.
Being aggrieved by the judgment passed by the Appellate
Court, the revision petitioner has filed this revision
petition.
7. Learned counsel for the revision petitioner
submits that the Trial Court has not provided an
opportunity to the accused to cross-examine PW.1.
Hence, he sought to remand the matter to the Trial Court
for providing an opportunity to the accused to cross-
examine PW.1 by allowing this revision petition.
8. Learned counsel for respondent remained
absent and hence, the arguments on behalf of respondent
is taken as nil.
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9. On perusal of records, the following points
would arise for my consideration:
i. Whether the revision petitioner/accused
has made out grounds to remand the
matter to the Trial Court to provide an
opportunity to the accused to cross-
examine PW.1?
ii. What order?
10. My answer to the above points are as under:
Point No.1: in the affirmative
Point No.2: as per final order
Regarding point No.1:
11. I have carefully examined the material placed
before the Court.
12. The complainant has filed the complaint for
dishonour of cheque said to have been issued by the
accused.
13. To prove the case of the complainant, one
N.Jayaraman, GPA holder is examined as PW.1. On
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15.4.2015, the case was deferred for further examination-
in-chief of PW.1 and the case was posted to 06.05.2015.
On that day, further examination-in-chief of PW.1 was
recorded and 13 documents were marked as Exs.P1 to
P13. Thereafter, the case was posted for cross-
examination of PW.1 on 26.04.2015. That on 24.6.2015,
PW.1 was absent, hence the case was posted to
12.08.2015. That on 12.08.2015 also, PW.1 remained
absent. Hence, the case was posted to 16.9.2015. That
on 16.09.2015, PW.1 present, E.P. was filed and the Trial
Court has rejected the prayer of accused and cross
examination of PW.1 is taken as nil and the case was
posted for further evidence on 14.10.2015. That on
14.10.2015, the Court has passed the order that there is
no further evidence of the complainant and further
evidence is taken as nil and the case was posted for
recording statement under Section 313 of Cr.P.C. and the
case was posted to 19.10.2015. That on 19.10.2015, one
K.P., Advocate filed vakalath for accused along with NOC
from previous counsel and filed application under Section
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311 of Cr.P.C. and the same was allowed with cost of
Rs.100/- and the case was posted to 11.11.2015. That on
11.11.2015, both parties were present and the
complainant's counsel seeks time. Hence, the case was
posted for cross of PW.1 and the case was posted to
09.12.2015. That on 09.12.2015, the case was posted for
reporting settlement and posted to 11.1.2016. That on
11.01.2016, settlement not reported and the case is
posted to 03.02.2016 for cross of PW.1. That on
03.02.2016, the complainant was present, E.P. filed and
sought time to cross-examine PW.1 and the prayer was
rejected and cross of PW.1 was taken as nil. Further, the
case was posted to 10.02.2016 to record the statement
under Section 313 of Cr.P.C.. That on 10.02.2016, the
accused remained absent and NBW was issued and case
was posted to 17.02.2016. That on 17.02.2016, the Court
has recalled the NBW issued against the accused and the
statement under Section 313 was recorded and application
filed under Section 311 of Cr.P.C. was allowed with a cost
of Rs.500/- and PW.1 is recalled for cross-examination and
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the case was posted to 03.03.2016. That on 03.03.2016,
PW.1 was present and accused was absent. Hence, cross
of PW.1 was taken as nil and the case was posted to
21.3.2016. Thereafter, the case was being adjourned
from time to time from 21.03.2016 to 01.04.2016. That
on 01.04.2016 also, the accused remained absent and the
Trial Court has passed the impugned judgment of
conviction and order of sentence.
14. On perusal of entire order sheet, it appears that
the Trial Court has provided sufficient opportunity to the
accused to cross-examine PW.1. However, the accused
has not cross-examine PW.1.
15. Considering the facts and circumstances of the
case and in the interest of justice, one more opportunity
has to be given to the accused to cross-examine PW.1.
Hence, I answer point No.1 in the affirmative.
Regarding point No.2:
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For the aforesaid reasons and discussions, I
proceeding to pass the following:
ORDER
1. The Criminal Revision Petition is allowed;
2. The judgment of conviction and order
sentence dated 01.04.2016 passed in
C.C.No.803/2014 by the Court of the Civil
Judge and Additional JMFC, Tarikere, which is
confirmed by the judgment dated 03.05.2017
passed in Criminal Appeal No.69/2016 by the
Court of the II Addl. Sessions Judge,
Chikkamagaluru are hereby set aside;
3. The matter is remanded to the trial Court
with a direction to provide an opportunity to
the accused to cross-examine PW.1.
4. The trial Court is also directed to provide an
opportunity to both the parties to adduce
additional evidence, if any;
5. The revision petitioner is directed to appear
before the trial Court on 05.02.2024 without
seeking further notice from the Trial Court.
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6. If the complainant has not appeared before
the trial Court, the trial Court is directed to
secure the presence of the complainant in
accordance with law;
7. The trial Court is directed to dispose of the
matter within a period of six months from the
date of appearance of both the parties as the
matter is of the year 2014;
8. Registry is directed to send a copy of this
judgment along with trial Court records to
the Trial Court forthwith.
Sd/-
JUDGE
SSD
