Karnataka High Court
Mrs. Bhawani Anand vs Mr. B.J. Vikas Kumar on 12 February, 2025
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
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NC: 2025:KHC:6270
CRL.A No. 391 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL APPEAL NO. 391 OF 2013
BETWEEN:
MRS. BHAWANI ANAND
W/O MR. G. ANAND
AGED ABOUT 29 YEARS
PRESENTLY R/AT NO.606, 4TH
" C " MAIN, OMBR LAYOUT,
OPP. CHAYA HOSPITAL
BANASWADI
BANGALORE-560 011.
...APPELLANT
(BY SRI. YATHISH KUMAR K.N, ADOVATE FOR
SRI DEVARAJ N.,ADVOCATE)
AND:
MR. B.J. VIKAS KUMAR
S/O B. JAI KUMAR
Digitally signed by AGED ABOUT 44 YEARS
HEMAVATHY
GANGABYRAPPA C/O MS/ VINOD AUTO SERVICES
Location: HIGH
COURT OF
NO.1, WHEELER ROAD,
KARNATAKA FRAZER TOWN, BANGALORE
...RESPONDENT
(BY SRI. THARANATH SHETTY.,ADVOCATE)
THIS CRL.A. IS FILED U/S. 378(4) CR.P.C PRAYING TO
SET ASIDE THE ORDER DATED:17.12.12 PASSED BY THE XIV
ADDL. C.M.M., BANGALORE IN C.C.NO.35724/2010 -
ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE
P/U/S 138 OF N.I. ACT.
-2-
NC: 2025:KHC:6270
CRL.A No. 391 of 2013
THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
ORAL JUDGMENT
This appeal is filed by the complainant challenging
the judgment of acquittal dated 17.12.2012 passed in
C.C.No.35724/2010 by the XIV Additional Chief
Metropolitan Magistrate, Bengaluru, whereunder the
respondent - accused has been acquitted for offence
punishable under Section 138 of the Negotiable
Instruments Act, 1881 (hereinafter referred to as 'N.I. Act'
for brevity).
2. The case of the appellant - complainant in brief,
is as under:
The respondent -accused has entered into Business
investment Agreement dated 23.05.2007 and the
appellant -complainant invested Rs.3,00,000/- paid
through cheque to the respondent -accused. The
respondent -accuse assured to pay profit of Rs.15,000/-
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every month for five months till the date of renewal of the
agreement. But the respondent -accused has not paid the
profit as agreed by him for more than 28 months and
therefore, the appellant -complainant approached the
respondent -accused and the respondent -accused
postponed to pay the profit amount. The appellant -
complainant recall the guarantee and presented the
cheque issued by the respondent-accused bearing
No.929018 dated 12.12.2009 for Rs.3,00,000/- drawn on
ICICI Bank, Kammanahalli Branch Bengaluru. The
appellant -complainant presented the said cheque for
encashment and the said cheque came to be dishonoured
for reason "Account is Dormant". The appellant -
complainant got issued legal notice on 16.01.2010. Inspite
of service of notice the respondent -accused did not pay
the cheque amount. Therefore, the complainant has filed a
private complaint against the respondent - accused for
offence punishable under Section 138 of the NI Act.
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3. Learned Magistrate has taken cognizance
against the respondent -accused and registered case in
C.C.No.35724/2010 for offence punishable under Section
138 of the N.I Act. The plea of respondent - accused has
been recorded. The complainant in order to prove her case
has examined herself as P.W.1 and got marked documents
as Ex.P1 to P10. P.W.1 has not tendered herself for cross
examination and same was noted in the order sheet dated
28.08.2012 and the case has been posted for recording of
the statement under Section 313 of Cr.P.C. The
statement of respondent -accused came to be recorded
under Section 313 of Cr.P.C. Learned Magistrate after
hearing arguments on both sides has formulated points for
consideration and passed impugned judgment of acquittal.
The said judgment of acquittal has been challenged by the
complainant in this appeal.
4. Heard learned counsel for the appellant and
learned counsel for the respondent.
5. Learned counsel for the appellant would
contend that after chief examination of P.W.1 which is
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recorded on 07.06.2012, P.W.1 due to her ill-health has
not attended the Court on subsequent dates of hearing.
Therefore, there is reason for the appellant -complainant
for absence on the dates on which case is posted for her
cross examination. The appellant -complainant has
produced medical certificate along with appeal memo. The
judgment of acquittal is passed only on the ground that
P.W.1 has not tendered for cross examination and she has
not proved her case. With these, he prayed to allow the
appeal.
6. Learned counsel for the respondent -accused
would contend that inspite of granting sufficient time
P.W.1 has not tendered herself for cross examination and
considering the same learned Magistrate has recorded the
same and proceeded with the matter. The counsel for the
complainant was not diligent in the trial Court and also not
diligent before this Court. He ought to have sought for
remand of the matter at the time of admission itself. With
this, he prays for dismissal of the appeal.
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7. Having heard learned counsel, this Court has
perused the impugned judgment and trial Court records.
8. The appellant is complainant and respondent is
accused before the trial Court. The complainant in order to
prove her case has got examined herself as P.W.1 and her
chief examination has been recorded on 07.06.2012. The
case has been posted for cross examination of P.W.1 on
11.07.2012, 07.08.2012 and 28.08.2012. On all those
three dates P.W.1 was not kept present for cross
examination. Learned Magistrate noting the same has
closed the evidence of P.W.1 stating that she was not
tendered for cross examination. Thereafter, recorded the
statement of accused under Section 313 of Cr.P.C and
proceeded with matter and passed impugned judgment of
acquittal on the ground that P.W.1 has not tendered for
cross examination. The judgment of acquittal has not been
passed on merits of the case. The appellant -complainant
has produced medical certificate issued by Orthopedic
Clinic dated 07.07.2012 which indicate that she was
suffering from "Acute Lumbo -Sacral Strain with Sciatica".
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The appellant -complainant has also produced medical
certificates dated 22.09.2012 and 10.10.2012. As the
appellant -complainant was suffering the above noted
illness, she was not present for cross examination on
11.07.2012, 07.08.2012, 28.08.2012. The absence of the
P.W.1 before the trial Court is not for malafide reasons but
it is for bonafide reasons. As the judgment of acquittal is
not passed on the merits of the complainant's case, the
matter requires to be remanded by setting aside the
impugned judgment of acquittal.
9. In the result, the following
ORDER
i. The appeal is allowed.
ii. The judgment of acquittal dated
17.12.2012 passed in C.C.No.35724/2010
by the XIV Additional Chief Metropolitan
Magistrate, Bengaluru is set aside.
iii. The matter is remanded to the Trial Court
for proceeding with the matter from the
stage of cross examination of P.W.1.
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iv. P.W.1 shall be kept present before the
trial Court on 03.03.2025 and learned
counsel for the respondent -accused shall
cross examine the P.W.1 on that day.
v. Parties are directed to appear before the
trial Court on 03.03.2025 without
awaiting the Court notice.
vi. Registry is directed to send trail Court
records along with copy of this order to
the concerned trial Court forthwith.
Sd/-
(SHIVASHANKAR AMARANNAVAR)
JUDGE
DSP
