Karnataka High Court
Sharanabasava S/O Golappa ... vs Halappa S/O Bheemappa Halannavar Alias ... on 7 February, 2025
Author: Ravi V.Hosmani
Bench: Ravi V.Hosmani
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CRL.RP No. 100070 of 2023
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 7TH DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE RAVI V.HOSMANI
CRIMINAL REVISION PETITION NO.100070 OF 2023
[397(Cr.PC)/438(BNSS)]
BETWEEN:
SHARANABASAVA S/O. GOLAPPA HALEMMANAVAR,
AGE: 31 YEARS, OCC. DRIVER AND AGRICULTURE,
R/O. BIJJUR, TQ. SHIRAHATTI,
DIST. GADAG-582120.
... PETITIONER
(BY SRI NANDISH PATIL AND
SRI RAMACHANDRA V BHAT, ADVOCATES)
AND:
HALAPPA S/O. BHEEMAPPA HALANNAVAR
@ HALANNANAVAR,
AGE: 30 YEARS, OCC. AGRICULTURE AND WEIGH BRIDGE
OPERATOR, R/O. GUTTAL,
Digitally
signed by TQ AND DIST. HAVERI-581110.
BHARATHI
BHARATHI H M
HM Date:
... RESPONDENT
2025.02.10
14:37:45 (BY SRI RAM P.GHORPADE, ADVOCATE FOR
+0530
SRI GIRISH C.KATTIMANI, ADVOCATE)
THIS CRIMINAL REVISION PETITION IS FILED U/SEC. 397 (1)
R/W. 401 OF CR.P.C. SEEKING TO CALL FOR THE RECORDS AND SET
ASIDE THE JUDGMENT OF CONVICTION AND ORDER OF SENTENCE
DATED 28.11.2022 PASSED BY THE COURT OF ADDITIONAL CIVIL
JUDGE AND J.M.F.C. HAVERI IN C.C.NO. 1242/2020 CONFIRMED BY
THE ADDITIONAL DISTRICT AND SESSIONS JUDGE, FTSC-I HAVERI
VIDE ITS JUDGMENT DATED 16.02.2023 PASSED IN CRL.APPEAL NO.
99/2022 AND ACQUIT THE PETITIONER FOR OFFENCE PUNISHABLE
U/SEC. 138 OF N.I. ACT.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
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CRL.RP No. 100070 of 2023
ORAL ORDER
(PER: THE HON'BLE MR. JUSTICE RAVI V.HOSMANI)
Challenging judgment/order dated 16.02.2023 passed by
Addl. District and Sessions Judge, FTSC-I, Haveri in Criminal
Appeal no.99/2022 ('Appellate Court') and judgment/order
dated 28.11.2022 passed by Addl. Civil Judge and J.M.F.C.,
Haveri in C.C.no.1242/2020 ('Trial Court'), this revision
petition is filed by accused (petitioner).
2. Sri Nandish Patil, learned counsel for petitioner
submitted petition was against concurrently erroneous findings.
It was submitted, respondent (complainant) had filed private
complaint in C.C.no.1242/2020 (supra) alleging that he was
agriculturist and resident of Guttal Town, owning 4 Acres of
land in Bijjur village, wherein petitioner was an agriculturist and
driver. And that petitioner had borrowed hand loan of
Rs.4,00,000/- from complainant on 30.06.2019 for family
necessity, and said amount was given to accused on his
promise to repay it within three months and issued cheque
bearing no.423372 drawn on State Bank of India for said
amount.
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3. And on 14.10.2019 when complainant demanded
repayment, petitioner postponed same by requesting
complainant to present cheque after one week. But, on
23.10.2019, when complainant presented cheque for collection,
it was dishonored and returned with endorsement dated
13.11.2019 as 'Due to Funds Insufficient'. Immediately,
complainant got issued legal notice on 03.12.2019, at both
addresses of petitioner, which returned with postal shara as
'refused' on 10.12.2019 and 11.12.2019 respectively.
Thereafter on 30.12.2019, he filed CC.no.1242/2020.
4. During trial, complainant examined himself as PW-1
and got marked Exhibits P1 to P8. Thereafter, though matter
was adjourned for cross-examination of complainant on several
dates of hearing, on 02.07.2022, learned Trial Judge took
cross-examination of PW-1 as nil and proceeded with matter.
However, recalling application filed on 25.08.2022 was allowed
on same day and matter was listed on 08.09.2022. But on said
day, without providing any further opportunity, once again
cross-examination of PW-1 was taken as nil. It was submitted,
due to some issues between petitioner and counsel, he had
changed counsel on 29.09.2022 and on 05.11.2022, one more
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application was filed for recalling of PW-1 for cross-
examination. However, without proper consideration, trial Court
rejected it on ground that opportunity granted earlier was not
availed. Thereafter, virtually proceeding ex-parte, judgment
impugned herein was passed on 28.11.2022.
5. In support of his submission, learned counsel relied
on decision of Hon'ble Supreme Court in Secretary,
Department of Horticulture, Chandigarh and Anr. v.
Raghu Raj, reported in 2008 (13) SCC 395, for proposition
that for failure of counsel party should not be made to suffer.
On above grounds, sought for allowing petition.
6. On other hand, Sri Gireesh C. Kattimani learned
counsel for complainant opposed petition. It was submitted, on
30.06.2019, petitioner took Rs.4,00,000/- as hand loan from
complainant and issued cheque towards repayment, which on
presentation as per instruction of petitioner for collection was
dishonored. Thereafter, complainant got issued legal notice
demanding payment of cheque amount. Petitioner neither
replied nor paid amount. Therefore, complainant filed private
complaint.
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7. Even after appearance, petitioner did not show
bonafides by paying amount. On other hand, he used dilatory
tactics by seeking repeated adjournments. Even when matter
posted for cross-examination of complainant and complainant
was present on all dates of hearing, petitioner sought
adjournments unnecessarily. After affording, sufficient
opportunity, trial Court closed stage for cross-examination. And
when application was filed for recalling, it had also graciously
allowed application. Either deliberately or intentionally
petitioner failing to utilize opportunity, one more application for
recalling of PW-1 was filed. As sufficient opportunity was
granted, second application came to be rejected, matter
proceeded with, permitting petitioner to address arguments on
main matter. Taking note of fact that execution of cheque was
admitted, presumption under Section 139 of NI Act, was
extended. On above grounds, sought for dismissal of petition.
8. Heard learned counsel, perused impugned
judgment and order and record.
9. From above, point that would arise for consideration
is:
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"Whether impugned judgment passed by
both Courts calls for interference?"
10. From above, it is seen main ground on which
judgment/order passed by both Courts are assailed is denial of
adequate opportunity for cross-examination of complainant.
11. Though, there is no dispute about matter being
adjourned at instance of petitioner on several dates of hearing,
at stage of cross-examination of PW-1, and on failure to have
taken it as 'nil' as well as grant of further opportunity after
allowing application for recalling of PW-1 are not in dispute,
leading to passage of impugned judgment/orders, reason
assigned for failure to avail opportunity was some issue with
counsel and consequent lack of intimation. In fact, petitioner
had changed counsel and immediately thereafter filed
application for recalling requires to be taken into account.
Hon'ble Supreme Court in Varsha Garg v. State of M.P.,
reported in 2022 SCC OnLine SC 986, held as follows:
"36. Summing up the position as it obtained from
various decisions of this Court, namely Rameshwar
Dayal v. State of U.P., State of W.B. v. Tulsidas
Mundhra, Jamatraj Kewalji Govani v. State of
Maharashtra, Masalti v. State of U.P., Rajeswar
Prosad Misra v. State of W.B. and R.B.
Mithani v. State of Maharashtra, the Court held:
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"27. The principle of law that emerges
from the views expressed by this Court in
the above decisions is that the criminal
court has ample power to summon any
person as a witness or recall and re-
examine any such person even if the
evidence on both sides is closed and the
jurisdiction of the court must obviously be
dictated by exigency of the situation, and
fair play and good sense appear to be the
only safe guides and that only the
requirements of justice command the
examination of any person which would
depend on the facts and circumstances of
each case."
12. It is further to be taken note of that NI Act, avails
presumption under Sections 118 as well as 139 of NI Act and
thereby casting burden on accused, it would be in interest of
justice to be liberal insofar as grant of opportunity. Extending
said principle to petitioner in this case would appear justified as
petitioner could not cross-examine complainant but also lead
evidence on his side. Besides, difficulty faced by petitioner with
earlier counsel requiring change of counsel would also require
to be taken into account.
13. At same time, apprehension of complainant against
dilatory tactics could be addressed by imposing appropriate
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cost/conditions. Point for consideration is answered in
affirmative. Hence, following:
ORDER
Criminal Revision Petition is allowed;
judgment/order dated 16.02.2023 passed by
Addl. District and Sessions Judge, FTSC-I,
Haveri in Criminal Appeal no.99/2022 and
judgment/order dated 28.11.2022 passed by
Addl. Civil Judge and J.M.F.C., Haveri in
C.C.no.1242/2020 are set-aside.
C.C.no.1242/2020 stands restored before
trial Court.
Both parties to appear without necessity of
issuing fresh summons on 17.03.2025 on which
day or to such other short date to which it may
be adjourned if there arises any such need,
complainant shall be present and available for
cross-examination by petitioner.
Petitioner shall cross-examine and conclude
evidence on his side, if any, expeditiously; trial
Court, thereafter conclude proceedings before
end of July, 2025.
In order to mitigate inconvenience caused to
complainant, petitioner is directed to deposit
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50% of cheque amount inclusive of deposit
already made.
SD/-
(RAVI V.HOSMANI)
JUDGE
GRD,RH
CT:PA
