Karnataka High Court
Sri. Srihari Acharya. N vs Sri. Vijaya Savanur. S. K on 9 January, 2024
Author: K.Natarajan
Bench: K.Natarajan
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CRL.P No. 2408 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE K.NATARAJAN
CRIMINAL PETITION NO. 2408 OF 2023
BETWEEN:
SRI. SRIHARI ACHARYA N
S/O LATE VITHOBHACHARYA,
AGED ABOUT 44 YEARS,
R/O NO.213, 4th MAIN ROAD,
CHAMARAJPET,
BENGALURU - 560 018.
...PETITIONER
(BY SRI. HARISH KUMAR M S., ADVOCATE)
AND:
SRI. VIJAYA SAVANUR S. K.
S/O LATE S. KRISHNA RAO,
AGED ABOUT 44 YEARS,
R/O NO.109, 1st FLOOR,
Digitally signed by
VEDAVATHI A K 6th CROSS, 5th MAIN,
Location: High
Court of Karnataka RK LAYOUT,
PADMANABHA NAGAR,
BENGALURU - 560 070.
...RESPONDENT
(BY SRI. DILIP KUMAR I S., ADVOCATE)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C PRAYING TO SET ASIDE THE ORDER PASSED BY THE LXV
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE (CCH-66) AT
BENGALURU IN CRL.A.NO.183/2022 DATED 30.01.2023.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
THE COURT MADE THE FOLLOWING:
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CRL.P No. 2408 of 2023
ORDER
This petition filed by the petitioner/accused under section
482 of Cr.P.C., for quashing the order dated 30.01.2023 in
Crl.A.No.183/2022 dated 30.01.2023 on the file of LXV Addl. City
Civil and Sessions Judge, Bengaluru, for having rejected the
application filed by the petitioner under section 391 of Cr.P.C.
2. Heard the arguments of learned counsel for the petitioner
and counsel for the respondent.
3. The case of the petitioner is that the petitioner said to be
issued a cheque to the respondent which was dis-honoured and a
private complaint has been filed by the respondent under section
138 of Negotiable Instruments Act, 1881 (hereafter referred to as
NI Act) read with 200 of Cr.P.C. After the plea was recorded the
respondent was examined as witness, along with documents. The
petitioner being accused was also examined himself as D.W.1.
After completion of his evidence, he has filed application under
section 243 (2) of Cr.P.C., for leading additional evidence of the
witnesses of the accused, which came to be rejected. Hence, he
has approached the Sessions judge by filing the revision in
Crl.Rev.P.No.193/2020, which also came to be dismissed.
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Subsequently, he has filed the petition before this court under
Section 482 of Cr.P.C., in Crl.P.No.9344/2021. During the
pendency of the said petition under Section 482 of Cr.P.C., the
trial court disposed of the matter by convicting the
petitioner/accused. Subsequently, the petitioner approached the
Sessions Judge for appeal by filing appeal under section 374 (3) of
Cr.P.C. After filing the appeal, the petitioner once again filed
application under section 391 of Cr.P.C., for leading additional
evidence before the appellate court, which came to be dismissed
vide impugned judgment, which is under challenge.
4. Learned Counsel for petitioner has contended the
petitioners are travel agents. The respondent was another person
representing some of the passengers, had booked the airline
tickets to Thailand and later the airlines had cancelled the tickets
of the passengers, which has got nothing to do with this petitioner.
Subsequently, the petitioner was abducted by the respondent and
forcefully took the cheques from him by signing the documents.
This contention required to be proved by the petitioner. Therefore,
he wants to examine his brother, his wife and the cousin, before
the trial court, which came to be dismissed. However, while
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challenging the same before the High Court, the main matter itself
was disposed of. Therefore, those witnesses are necessary for the
petitioner to examine before the court, to support his contention.
Therefore, he must be allowed to plead additional evidence to
examine those witnesses. Hence, prayed for allowing the petition.
5. Per contra respondent counsel objected the petition and
contended that, the earlier order rejecting application came to be
rejected. After the rejection of the revision petition, once again
the petitioner moved application under section 311 of Cr.P.C. and
he himself examined for further evidence and got marked some
more documents. Thereafter, judgment has been delivered by the
trial court, once the application of rejecting for leading of the
additional evidence under section 243 of Cr.P.C., has been ended
and attained in finality. Therefore, once again, the petitioner
cannot file the application before the appellate court, under section
391 of Cr.P.C. Therefore, First Appellate Court rightly rejected the
application and hence prayed for dismissing the petition.
6. Learned counsel also submitted that during most of the
cross examination, the accused as D.W.1., has admitted the
issuance of the cheque singing of the cheque etc., therefore
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admitting the liability. Therefore, question of leading additional
evidence to prove some other facts is not required for the
proceedings under section 138 of NI Act. Therefore, prayed for
dismissing the petition.
7. Having heard the arguments, perusal of the records, it is
an admitted fact, the petitioner said to be a travel agent, where
the respondent along with the others booked the air tickets to
travel to Thailand. Admittedly, when the passengers came to the
airport, the airlines said to be cancelled the tickets and they were
not able to travel. Subsequently, in order to repay the said
amount, the petitioner said to be issued the cheque to the
respondent, which was dishonoured. Hence, the complaint under
Section 138 of NI Act has been filed. It is also an admitted fact,
that the petitioner examined as D.W.1 and got marked some
documents. Subsequently he has filed an application under section
243 (2) of Cr.P.C., which came to be rejected, which was upheld
by the Sessions Judge under revision. Thereafter, he has filed the
petition under section 482 of Cr.P.C., in Crl.P.No.9344/2021.
During the pendency of the said petition, the trial court disposed of
the main matter itself. Subsequently, the appeal has been filed.
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Once again, the petitioner moved the application under section
391 of Cr.P.C., for leading the additional evidence, which is under
challenge. Considering the facts, the rejection of the application
under section 243 (2) of Cr.P.C. has been attained finality, by
rejection of the revision petition by the First Appellate
Court/Revisional Court and withdrawing the Crl.P.No.9344/2021
before this Court, where the order of rejection of leading additional
evidence has been attained finality. Subsequently, as per the
contention of the respondent counsel and it is not disputed by the
Petitioner counsel, after rejection of the revision petition, the
petitioner being the accused, filed another application under
Section 311 Cr.P.C., and lead further evidence of the petitioner
and he has got some more documents. Thereafter, the trial court
disposed the matter by convicting the petitioner. Once the
application for leading additional avoidance under section 243 (2)
of Cr.P.C. has been attained finality. Once again, the question of
allowing the petitioner to lead additional evidence in the appeal as
provided under section 391 of Cr.P.C., does not arises. It is
nothing but overcoming the earlier order passed by the court
which was already attained the finality. Therefore, the question of
allowing the petitioner to lead additional evidence under section
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311 Cr.P.C, in the appellate court cannot be allowed, as the
petitioner already lead additional evidence after 10 months of the
rejection of the revision petition. Such being the case, the
question of once again leading additional evidence under Section
391 of Cr.P.C., is nothing but revoking the order passed by the
Trial Court and upheld by the Appellate Court, under Section 243
(2) of Cr.P.C., Therefore, without touching the merit of the case,
whether the petitioner admitted in the cross examination of the
complainant issuance of cheque singing the cheque, admitting the
liability cannot be dealt with this court as it may prejudice the case
of the petitioner as well the complainant, When the matter is
pending in the Appellate Court. Such being the case, I am of the
view petition is devoid of merits.
Accordingly, this petition is dismissed.
Sd/-
JUDGE
AKV
CT:SK
