Karnataka High Court

Shri Gurupadappa S/O Basavantappa ... vs Shri Anadappa S/O Shekappa Dundur on 31 January, 2025

Author: M.Nagaprasanna

Bench: M.Nagaprasanna

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                                                                NC: 2025:KHC-D:1962
                                                          CRL.P No. 103841 of 2024




                                    IN THE HIGH COURT OF KARNATAKA,
                                            DHARWAD BENCH

                               DATED THIS THE 31ST DAY OF JANUARY, 2025

                                                 BEFORE

                               THE HON'BLE MR. JUSTICE M.NAGAPRASANNA

                              CRIMINAL PETITION NO. 103841 OF 2024
                                    (482(Cr.PC)/528(BNSS))
                      BETWEEN:

                      SHRI. GURUPADAPPA S/O. BASAVANTAPPA KARALATTI,
                      AGE. 60 YEARS, OCC. CHAIRMAN,
                      THE KARALATTI SOUHARDA SAHAKARI
                      BANK NIYAMITA HUBBALLI,
                      RESIDENT OF UNKAL CROSS,
                      SIDDESHWAR NAGAR,
                      HUBBALLI- 580031.
                                                                        ...PETITIONER
                      (BY SRI. SUBHASH J. BADDI, ADVOCATE)

                      AND:

                      SHRI. ANADAPPA S/O. SHEKAPPA DUNDUR,
                      AGE. 49 YEARS, OCC. TEACHER RESIDENT OF
                      UNKAL CROSS, SIDDESHWAR NAGAR,
                      HUBBALLI- 580031.
Digitally signed by                                                   ...RESPONDENT
VISHAL NINGAPPA
PATTIHAL              (BY SRI SANTOSH NARAGUND, ADVOCATE)
Location: High
Court of Karnataka,
Dharwad Bench,
Dharwad                      THIS CRIMINAL PETITION IS FILED U/S 482 OF CR.P.C. (528
                      OF BNSS), PRAYING TO QUASH THE IMPUGNED ORDER DATED
                      06.12.2024 PASSED ON APPLICATION AS FILED BY THE PETITIONER
                      U/S 311 OF CR.P.C. (348 OF BNSS) PENDING BEFORE I ADDL. CIVIL
                      JUDGE AND JMFC COURT, HUBBALLI IN CC NO.2094/2018 FOR THE
                      OFFENCE PUNISHABLE U/S 138 OF N.I. ACT.


                             THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
                      ORDER WAS MADE THEREIN AS UNDER:
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                                             NC: 2025:KHC-D:1962
                                       CRL.P No. 103841 of 2024




                           ORAL ORDER

(PER: THE HON'BLE MR. JUSTICE M.NAGAPRASANNA)

1. The petitioner is before this Court calling in

question an order dated 06.12.2024, passed by the

concerned Court rejecting an application filed under

Section 311 of the Criminal Procedure Code (for short

"the Cr.P.C.").

2. Heard the learned counsel Sri.Subhas J. Baddi

appearing for petitioner and learned counsel Sri.Santosh

Naragund appearing for respondent.

3. The petitioner is the accused. The respondent is

the complainant. They two have a transaction. In

furtherance of the transaction, the petitioner is said to

have issued a cheque for Rs.5,00,000/-. The cheque when

presented is dishonoured on account of insufficient funds.

This leads the respondent to the concerned Court invoking

Section 200 of the Cr.P.C. for offence punishable under

Section 138 of Negotiable Instruments Act. The issue in

the lis does not pertain to the merit of the claim of the

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complainant or the defence of the petitioner. The issue is

with regard to an application filed by the petitioner under

Section 311 of Cr.P.C. The complainant then files his

objections and the concerned Court rejects the application.

The rejection of which has driven the petitioner to this

Court in the subject petition.

4. The learned counsel appearing for the petitioner

submits that if one opportunity is granted he would

conclude the defence evidence on the said date and the

rejection of the application runs counter to plethora of

judgments rendered by the Apex Court.

5. Per contra, the learned counsel appearing the

complainant would submit that the filing of the present

application is a classic case of abuse of the process of the

law, as this is the application is repeatedly filed and only

to drag the proceedings. He would contend that the issue

is of the year 2018, seven years have passed by and the

petitioner is wanting to drag the proceedings on one score

or the other.

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6. I have given my anxious consideration to the

submissions made by the respective learned counsel and

perused the material on record.

7. The afore-narrated facts are not in dispute. The

order that has driven the petitioner to this Court is

rejection of an application under Section 311 of Cr.P.C.

The rejection of the application in C.C.No.2094/2018 is

reasoned as follows:

"The complainant had filed complaint against the accused under Section 200 of Cr.P.C., for the offence punishable under Section 138 of N.I. Act. This complaint was filed by the complainant in the year 2018. The accused was appeared before the Court and obtained bail on 02.11.2019. Thereafter, this is the ninth application filed by the accused under Section 311 of Cr.P.C., either to recall P.W-1 for cross examination or for defence evidence. This Court had allowed eight applications filed by the accused under Section 311 of Cr.P.C., and given opportunity for him to cross examine the P.W-1 and lead the defence evidence. Apart from that this accused had failed to pay the cost imposed on him by the Court to the complainant. Though this Court had allowed the earlier applications filed by the accused and posted the case for defence evidence on 24.08.2024, he did not appeared before the Court. Even counsel for accused did not produced any medical record to show that, on 24.08.2024 he was suffering from ill health. Even subsequent dates of hearing on 28.08.2024, accused did not appeared before the Court to lead evidence. After obtaining the bail, accused was irregular in appearing before the Court and several time NBW was issued against him. The conduct of the accused shows that, he is trying to protract the proceedings. Though this Court had

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given sufficient opportunities to lead the defence evidence, accused did not used the said opportunities and filed this application. Apart from that, accused has not produced any medical records along with this application to show that, he was suffering from ill health on 24.08.2024 and 28.08.2024. Therefore, I have not find any reasons to allow the application filed by the accused. With these observations I proceed to pass the following;

ORDER Application filed by the accused under Section 311 of Cr.P.C., is hereby dismissed with cost of Rs.2,000/-.

Call on for arguments by 09.12.2024."

8. The concerned Court observes that the

complaint was filed in the year 2018. The accused is

appeared on 02.11.2019 and the application that comes to

be rejected was his 9th application under Section 311 of

the Cr.P.C. No doubt the applications filed under Section

311 are to be allowed. As it is towards the discovery of

truth and all opportunity to be granted to both the accused

the prosecution or the complainant as the case would be,

but it should not become an abuse of the process of the

law. This is what is held by this Court in Criminal Petition

No.6269/2024 dated: 22.07.2024 is as follows:

"6. A perusal at the order or the order sheet maintained by the Court is indicative of the fact that the petitioner has gone on seeking adjournments in a case

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thatbegan in the year 2009. The trial is yet to get concluded despite passage of 15 years. Six years ago, PW Nos.1 and 2 were examined and cross-examined. An application comes to be filed by the petitioner, when the trial was an advance stage. That comes to be rejected. The petitioner challenges the said rejection before the Court of Session. It comes to be affirmed. The finding of the Court of Session, is necessary to be noticed.

"20. As far as order passed against PW2 is concerned, it is noticed that CW2 who was the Government official is examined as PW2 and concluded her evidence on 23.02.2016 and at the request of the Advocate for the accused, the cross-examination on 16.03.2017. On that day, PW2 was present but the Advocate for the accused sought time, therefore, the case was adjourned for cross-examination of PW2 subject to payment of cost of Rs.1,000/- and posted the matter for cross-examination on 03.05.2017. On 03.05.2017, the Advocate for the accused prays time for cross-examination of PW2, but the Trial Court by rejecting the prayer of the learned Counsel for the accused, taken the cross- examination of PW2 has nil. Again on 23.03.2018, the learned Counsel for the accused filed application u/s 311 of Cr.P.C., to recall the PW2, the said application was allowed on 28.05.2018 and PW2 was recalled for cross- examination. On 08.07.2019, PW2 was present, but the Advocate for accused prays time for cross-examination. The Trial Court noted that the case is of the year 2012, rejected the prayer of the learned Counsel for the accused and the cross-examination of PW2 was taken as nil. Again the Advocate for the accused filed application to recall the PW2 for cross- examination and by noting all these facts the learned Magistrate rejected the IA filed by the Advocate for the accused u/s 311 of Cr.P.C., to recall the PW2 for cross-examination. The above noted proceedings make it very clear that the case pertains tothe year 2012, PW2 was examined in the year 2017. Asper the deposition, CW2/PW2 was the resident of Pune and was aged 57 years and thrice she appeared before

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the Court for cross-examination but the Advocate for the accused by one reason or the other has failed to cross-examine the witness who came all the way from Pune. According to the Advocate for the petitioner, the Advocate for the accused was engaged in another Court therefore, he could not reach the Court in time. This ground alone is not sufficient to recall the PW1. The Trial Court liberally and generously passed the order thrice on the application filed by the accused to recall the PW2, but the Advocate for the accused failed to make use of the order passed by the Trial Court. The grounds urged to the PW2 are not at all sufficient to interfere with the order passed by the Trial Court. For the reasons discussed above, I do not find any merits in the submission made by the learned Counsel for the petitioner/accused. Accordingly, I answered this point in the negative.

21. Point No.3:- In view of my findings on point No.1 and 2. I proceed to pass the following:

ORDER

The revision petition filed by the petitioner u/s 397 of Cr.P.C., challenging the order passed on the application filed u/s 311 of Cr.P.C., dated 28.12.2023 in CC No. 13318/2012 by learned III ACMM, Bengaluru, is hereby rejected."

The finding of the Court cannot be found fault with but the action of the petitioner undoubtedly needs to be found fault with. It is trite that an application under Section 311 of Cr.P.C., would in the normal circumstance be permitted except in cases where such applications are filed only to drag the proceedings. The case forms a classic illustration of one such action being initiated only to drag the proceedings, as the petitioner has filed an application under Section 311 of Cr.P.C., after six years of the examination getting over.

7. Finding no merit in the petition and no warrant to interfere with the order passed by the concerned Courts, the petition stands rejected."

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9. The subject application which is 9th in line, if

permitted and to lead defence evidence, now after seven

years, it would on the face of it become an abuse of the

process of the law. The petition is thus rejected.

10. In the light of the issue being seven years old

today, the concerned Court shall endeavor to conclude the

proceedings within an outer limit of three months, if not

earlier, in accordance with law.

Ordered accordingly.

Sd/-