Karnataka High Court
Imran vs Shrenik on 2 June, 2025
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
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CRL.RP No. 1422 of 2016
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF JUNE, 2025
BEFORE
THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL REVISION PETITION No. 1422 OF 2016
BETWEEN:
IMRAN
S/O WAZIR
AGED ABOUT 34 YEARS
BUSINESSMAN
HIGH-TECH GARMENTS
SHOP No.9, S.M.JAIN COMPLEX
GANDHIBAZAR
SHIVAMOGGA - 576 101.
...PETITIONER
Digitally
signed by (BY SMT. MOHANA KUMARI B V, ADVOCATE FOR
NIRMALA SRI ABUBACKER SHAFI, ADVOCATE)
DEVI
Location: AND:
HIGH COURT
OF SHRENIK
KARNATAKA S/O LATE SHA HAJARIMAL JI
AGED ABOUT 31 YEARS
BUSINESSMAN
R/O SRI AMBIKA KRUPA
K.R.PURAM ROAD
SHIVAMOGGA - 576 101.
...RESPONDENT
(BY SRI MANJU B S, ADVOCATE - ABSENT)
THIS CRL.RP IS FILED UNDER SECTION 397 Cr.P.C
PRAYING TO SET ASIDE THE JUDGMENT AND ORDER DATED
28.10.2014 PASSED BY THE JMFC-II COURT, SHIVAMOGGA IN
C.C.No.534/2014 AND SET ASIDE THE JUDGMENT AND ORDER
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CRL.RP No. 1422 of 2016
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DATED 3.10.2016 PASSED BY THE III ADDITIONAL S.J.,
SHIVAMOGGA IN CRL.A.No.165/2014 AND ETC.,
THIS PETITION COMING ON FOR FINAL HEARING THIS
DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
ORAL ORDER
1. This revision petition is filed praying to set aside
the judgment dated 03.10.2016 passed in Crl.A. No.
165/2014 by the III Additional Sessions Judge,
Shivamogga whereunder the appeal filed by the petitioner
challenging the judgment of conviction dated 28.10.2014
passed in C.C. No. 534/2014 by JMFC II Court,
Shivamogga is dismissed confirming the judgment of
conviction for offence under Section 138 of Negotiable
Instruments Act (hereinafter referred to as the N.I. Act.).
2. Heard learned counsel for petitioner. Learned
counsel for respondent is absent.
3. Petitioner was the accused in C.C. No.
534/2014 on the file of JMFC II Court, Shivamogga and
respondent was the complainant therein. Said case has
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been registered for offence under Section 138 of N.I. Act.
The petitioner has been convicted in the said criminal case
for offence under Section 138 of N.I. Act and has been
sentenced to pay fine of Rs.4,20,000/-. The petitioner
challenged the judgment of his conviction passed in C.C.
No. 534/2014 in Crl.A. No. 165/2014 before the III
Additional Sessions Judge, Shivamogga. Said appeal came
to be dismissed by judgment dated 03.10.2016. The
petitioner has challenged the judgments passed in the said
criminal case and criminal appeal.
4. Learned counsel for petitioner would contend
that the trial Court has not given an opportunity to the
petitioner to cross-examine P.W.1 - complainant. Said
aspect is also not looked into by the appellate Court.
5. On perusal of the order sheet in C.C. No.
534/2014 of the trial Court, the date of appearance of the
petitioner - accused was on 28.07.2014. On that day
counsel for the petitioner filed vakalath for the petitioner -
accused and also filed an application under Section 205 of
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Cr.P.C. The trial Court adjourned the matter. On the next
date, i.e., on 25.08.2014 - the date of appearance of
petitioner - accused the trial Court recorded in the order
sheet as under:
"Accused is present. Sri.HKMR., Advocate
filed bail application on behalf of the accused.
Heard. Bail application filed by the accused is
allowed subject to the following conditions;
1. Accused shall execute personal
bond for Rs.25,000/-
2. Accused shall appear before the
court on all the hearing dates.
Bond executed.
Substance of the accusation is stated to be
accused. Accused pleaded not guilty and
submitted to he has defense to make.
Complainant is examined as PW.1. Ex.P-1
to 5 are marked. Statement of the accused is
recorded U/s. 313 Cr.PC. Accused has chosen to
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lead his evidence. Evidence of the accused if any
by :20.9.2014."
6. Considering the above aspect, on the date of
appearance of the petitioner - accused, the plea has been
recorded and the complainant has been examined as
P.W.1 and got marked Ex.P.1 to Ex.P.5. On the same day,
statement of the petitioner - accused under Section 313 of
Cr.P.C. has been recorded and case has been adjourned
for recording the evidence of the petitioner - accused. On
perusal of the deposition of P.W.1 there is no mention of
cross-examination of complainant - P.W.1 by the
petitioner - accused. The petitioner - accused and his
counsel were present on 25.08.2014. On that day the plea
of the petitioner - accused has been recorded, so also
evidence of complainant - P.W.1. Inspite of presence of
petitioner - accused and his counsel there is no mention
regarding cross-examination of complainant - P.W.1 by the
petitioner - accused either in the deposition or in the order
sheet. This shows that the petitioner - accused has not
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been given an opportunity to cross-examine the
complainant - P.W.1. The trial Court has not stated
anything regarding cross-examination of complainant -
P.W.1 by the petitioner - accused. The trial Court was
carried away by the fact that the petitioner - accused has
not led any defence evidence. The petitioner - accused
has a right to cross-examine complainant - P.W.1 to prove
his defence. Said right has been deprived by the trial
Court. Even the appellate Court has not considered the
said aspect and observed as under:
"In spite of sufficient opportunity provided,
the accused did not made any venture to cross-
examine the PW.1 and has also not adduced any
defence evidence."
7. The appellate Court ought to have noted the
fact of not giving opportunity to the petitioner - accused
to cross-examine complainant - P.W.1. Considering the
above aspects it is clear that the trial Court and the
appellate Court have committed an error in giving a
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finding that the petitioner - accused has committed the
offence under Section 138 of N.I. Act without affording
him an opportunity to cross-examine complainant - P.W.1.
Therefore, the judgments of the trial Court and the
appellate Court requires to be set aside and the matter
requires to be remanded to the trial Court for affording an
opportunity to the petitioner - accused for cross-
examining the complainant - P.W.1.
8. In view of the above, the following;
ORDER
i. Petition is allowed.
ii. Judgment dated 28.10.2014 passed in
C.C. No. 534/2014 by the JMFC II Court
Shivamogga and judgment dated 03.10.2016
passed in Crl.A. No. 165/2014 by the III
Additional Sessions Judge, Shivamogga, are set
aside.
iii. The matter is remanded to the trial Court
with a direction to give an opportunity to the
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petitioner - accused for cross-examining the
complainant - P.W.1 and thereafter dispose the
matter in accordance with law.
iv. The petitioner - accused is directed to
appear before the trial Court on 30.06.2025
without anticipating any Court notice.
Sd/-
(SHIVASHANKAR AMARANNAVAR)
JUDGE
LRS
