Aizaz Ali Khan vs Bandenawaz Ramadurg
2025 Latest Caselaw 5991 Kant

Karnataka High Court

Aizaz Ali Khan vs Bandenawaz Ramadurg on 10 June, 2025

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                                                           CRL.RP No. 500 of 2019


                       HC-KAR



                         IN THE HIGH COURT OF KARNATAKA AT BENGALURU
                                DATED THIS THE 10TH DAY OF JUNE, 2025
                                                BEFORE
                                THE HON'BLE MR JUSTICE G BASAVARAJA
                           CRIMINAL REVISION PETITION NO. 500 OF 2019
                                    (397(Cr.PC) / 438(BNSS))

                       BETWEEN:

                       AIZAZ ALI KHAN
                       S/O DR. M.A. KHAN
                       AGED ABOUT 56 YEARS
                       R/AT NO.7,8 & 9
                       VISHWANEEDAM POST
                       HEROHALLI, MAGADI RD.,
                       BANGALORE - 560091.
                                                                    ...PETITIONER
                       (BY SRI. JOSE SEBASTIAN., ADVOCATE)


                       AND:

                       BANDENAWAZ RAMADURG
                       S/O RAJESAHED RAMADURG
Digitally signed by
LAKSHMINARAYAN N       AGED ABOUT 45 YEARS
Location: HIGH COURT
OF KARNATAKA           R/AT NO.31, SRINIVASA NILAYA,
                       1ST MAIN, HEBBAL BINNY MILL ROAD,
                       GANGANAGAR, BANGALORE-560032.
                                                                   ...RESPONDENT
                       (BY SRI. P.N.HEGDE, ADVOCATE)


                            THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C PRAYING
                       TO SET ASIDE THE JUDGMENT AND ORDER PASSED IN
                       C.C.NO.7845/2014 ON 20.07.2015 PASSED BY THE XII
                       A.C.M.M., AT BENGALURU AND SET ASIDE THE JUDGMENT AND
                       ORDER PASSED IN CRL.A.NO.1084/2015 ON THE FILE OF THE
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                                                NC: 2025:KHC:19776
                                          CRL.RP No. 500 of 2019


HC-KAR



55TH ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, AT
BENGALURU ON 31.12.2018.

     THIS PETITION, COMING ON FOR FINAL HEARING, THIS
DAY, ORDER WAS MADE THEREIN AS UNDER:

CORAM:      HON'BLE MR JUSTICE G BASAVARAJA

                            ORAL ORDER

Revision Petitioner has preferred this revision petition

against the judgment of conviction and Order on sentence

dated 20th July 2015, passed in CC No.7845 of 2014 by the XII

Additional Chief Metropolitan Magistrate, Bengaluru, which is

confirmed by order dated 31st December 2018 passed in

Criminal Appeal No.1084 of 2015 by the 55th Additional City

Civil & Sessions Judge, Bengaluru (CCH - 56) (for brevity,

hereinafter referred to as the "appellate Court").

2. For the sake of convenience, the parties herein are

referred to as per their status before the appellate court.

3. Factual matrix of the case is that, respondent filed

complaint under Section 138 of Negotiable Instruments Act for

dishonour of cheque for Rs.7,50,000/-. The trial Court

convicted the accused under Section 138 of Negotiable

Instruments Act with fine of Rs,.8,80,000/- and in default, to

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undergl simple imprisonment for a period of three months.

Being agrieved by the said conviction order, accused preferred

appeal before the appellate Court and the same came to be

dismissed by order dated 31st December 2018. However, the

appellate Court reduced the fine amount from Rs.8,80,000/- to

Rs.8,10,000/- Being aggrieved by the judgment of both the

courts, the accused is before this Court in this revision petition

challenging the conviction order.

4. Sri Jose Sebastian, Learned Counsel appearing for the

Revision Petitioner submit that the trial Court has not provided

an opportunity to accused for full cross examination of PW1 and

also to adduce defence evidence. Accused has clearly stated in

his statement under Section 391 of Code of Criminal Procedure

that there is a defence evidence on his behalf. Unfortunately,

the accused and his Advocate not appeared before the Court

and the case was posted for defence evidence. Hence the trial

Court has passed the order, that the defence evidence is taken

as 'Nil' and thereafter, arguments of the accused also taken as

'nil' and passed the impugned judgment of conviction, which is

confirmed by the appellate Court. Further, he would submit

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that the revision petitioner has filed application under Section

391 of Code of Criminal Procedure seeking permission to

produce documents along with affidavit. The accused has

produced the Acquittance Roll in which there is an entry of

receiving the salary by the accused. This is a vital document to

rebut the presumption under section 139 of Negotiable

Instruments Act. Revision petitioner/accused is also ready to

deposit the balance amount of Rs.3,10,000/- and he will

undertake to co-operate for trial before the trial court, if at

least, two months' period is provided from this date. To

substantiate his argument, he relied on the decisions of Hon'ble

Supreme Court in RAMBHAU AND ANOTHER v. STATE OF

MAHARASHTRA reported in (2001)4 SCC 749 and KALYANI

BASKAR V. M.S. SAMPOORNAM reported in (2007)2 SCC 258.

5. Per contra, Sri P N Hegde learned Counsel appearing

for the respondent would submit that the trial Court has

provided sufficient opportunity to the accused to cross-examine

PW1 and also to adduce defence evidence. However, the

accused has not utilised that opportunity. Even before the

appellate Court, the accused has not filed application under

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Section 391 of Code of Criminal Procedure to produce additional

documents. The conduct of the Revision petitioner goes to

show that he is only trying to protract the proceedings. He has

filed this application under Section 391 of Code of Criminal

Procedure, which is not maintainable under law. Absolutely,

there are no grounds to remand the case to the trial Court. He

would further submit that the power to record additional

evidence under Section 391 of Code of Criminal Procedure

should only be exercised when party making such request was

prevented from presenting the evidence in the trial despite due

diligence being exercised or that the fact giving rise to such

prayer came to light at a later stage during the pendency of

appeal and that the non-recording of such evidence, may lead

to failure of justice. He submits that revision petitioner has not

made out grounds to show that what prevented him to produce

the documents before the trial Court or before the appellate

Court. Hence he sought for dismissal of the application filed

under Section 391 of Code of Criminal Procedure as well as

revision petition on merits.

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6. To substantiate his argument, he relied on the

decisions of Hon'ble Supreme Court in H.N. JAGADEESH v. R.R.

RAJESHWARI reported in (2019)16 SCC 730 and in the case of

AJITSINH CHEHUJI RATHOD v. STATE OF GUJARAT AND

ANOTHER reported in 2024 SCC ONLINE SC 77.

7. Having heard arguments and both sides, the point that

arise for my consideration is, Whether the Revision Petitioner

has made out a ground to allow the application filed and

Section 391 of Code of Criminal Procedure.

8. I have examined the material placed before this Court.

After issuance of demand notice as required under Section 138

of Negotiable Instruments Act, the accused has not sent any

reply. In this regard, he submits that the postal

acknowledgement produced by the complainant reveals that the

accused has not put his signature on acknowledgement Exhibit

P5. Therefore, the accused has no knowledge of this notice

issued by the complainant.

9. Perusal of the Order sheet of the trial Court reveals

that the trial Court has partly recorded evidence of PW1 on 12th

November 2014. The trial Court has noted in the order sheet

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that the accused and advocate "absent", hence the cross of

PW1 was taken as 'Nil' and the case was posted for recording

statement under section 313 of Code of Criminal Procedure' and

Non-bailable Warrant was issued against the accused and the

case was posted to 20th December 2014. On that day, PF was

paid and NBW was issued and case was posted 06th March,

2015. In the meanwhile, that on 26th February, 2015, the case

was advanced and on that day, accused and his advocate were

present. The Non-bailable warrant was recalled and the

statement under Section 313 of Code of Criminal Procedure was

recorded and the case was posted for defence evidence on 06th

March, 2015. On 06th March, 2015, the accused remained

absent and Exemption Application was filled and the same was

allowed and the case was posted to 17th March, 2015. On 17th

March, 2015, recall application was filed under Section 311 of

Code of Criminal Procedure to recall PW1 for cross-examination.

Same was allowed with cost of Rs.300/- and case was posted

for cross of PW1 on 08th April, 2015. On 08th April, 2015, PW1

was partly cross-examined and at the request of learned

counsel for the accused, further cross was deferred to 04th May,

2015. On 04th May, 2015 the accused was present and his

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advocate remained absent and hence the cross of PW1 was

taken as closed and case was posted to 16th May, 2015. On

16th May, 2015 the accused remained absent and exemption

petition was filed and the same was allowed and cased was

posted to 05th June, 2015. That on 05th June, 2015, advocate

and complainant were present, accused counsel was absent.

Hence, defence evidence taken as 'nil' and the case was posted

on 09th June, 2015. That on 09th June, 2015, case was posted

for arguments on 20th June, 2015. On 20th June, 2015, accused

remained absent and exemption application was filed. Same

was allowed and the case was posted for argument on 02nd

July, 2015. On that day also, the exemption application was

filed and the same was allowed and the case was posted for

arguments finally on 09th July, 2015. On 09th July, 2015,

accused and his counsel remained absent, hence defence

evidence taken as 'Nil' and complainant's side arguments was

heard and the case was posted for defence side arguments, if

any, on 15th July, 2015. On 15th July, 2015, the advocate and

the complainant were present. The accused and his advocate

remained absent till 4.00 pm. Hence, the defence arguments

taken as 'nil' and case was posted for judgment on 20th July,

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2015 and on 20th July, 2015 the judgment was pronounced by

imposing fine of Rs.8,80,000/- for the offence punishable under

Section 138 of NI Act. On the date of pronouncement of

judgment also, the accused remained absent.

10. A perusal of the entire order sheet makes it clear that

the trial Court has recorded the examination-in-chief of PW1 in

the absence of accused and his Advocate, which is not

permissible under Section 273 of Code of Criminal Procedure.

The said Section reads thus:

"273. Evidence to be taken in presence of accused.

- Except as otherwise expressly provided, all evidence taken in the course of the trial or other proceeding shall be taken in the presence of the accused, or, when his personal attendance is dispensed with, in the presence of his pleader

Provided that where the evidence of a woman below the age of eighteen years who is alleged to have been subjected to rape or any other sexual offence, is to be recorded, the court may take appropriate measures to ensure that such woman is not confronted by the accused while at the same time ensuring the right of cross-examination of the accused.

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Explanation. - In this Section, "accused" includes a person in relation to whom any proceeding under Chapter VIII has been commenced under this Code."

11. When the accused counsel remained absent, the trial

Court ought to have secured the accused by taking necessary

steps. But before securing the accused, the trial Court has

recorded the evidence of PW1 in the absence of the accused

and his Advocate which is contrary to provisions of the

abovesaid section and also same is contrary to the provisions of

Article 21 of Constitution of India.

12. The trial Court has recorded the statement under

Section 313 of the Code of Criminal Procedure on 26th February,

2015. The accused was not present at the time of recording

the evidence of PW1. However, the trial Court has put a

question under Section 313 of Code of Criminal Procedure that

"Have you heard the evidence of complainant-PW1?" To this,

the accused has answered "yes". Though the accused and his

counsel were not present on the date of recording evidence of

PW1, the accused has given his answer that he has heard the

evidence of PW1. This answer recorded by the trial Court

reveals that the trial Court, has mechanically recorded the

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statement of accused which is not sustainable in law. It is

settled principle of law that the recording of statement under

Section 313 of Code of Criminal Procedure is not an empty

formality as held by the Hon'ble Supreme Court in a catena of

cases. This is also one of the reasons for remanding the case

to the trial Court as the learned Magistrate has mechanically

recorded the statement under Section 313 of Code of Criminal

Procedure.

13. The trial Court has also committed an error in closing

the defence evidence without securing the accused. When the

accused and his Counsel remained absent, the trial Court ought

to have taken steps for securing the accused in accordance to

law. The trial Court, without taking steps to secure the

accused, has passed the order that the defence evidence is

taken as 'nil' and the defence argument is also taken as 'nil'

which is not in accordance with law. It is settled principle of

law that just and fair trial has to be conducted in all criminal

cases under Article 21 of Constitution of India. Unfortunately,

the trial Court has recorded the evidence of PW1 in the absence

of accused. The learned Counsel for the respondent rightly

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submitted that the accused could have filed application under

Section 391 of Code of Criminal Procedure before the appellant

Court. The revision petitioner has not assigned proper reason

for non-filing of application under Section 391 of Code of

Criminal Procedure before the appellate Court. It is the case of

complainant that the cheque in question was issued towards

arrears of salary. It is the case of the complainant that the

total arrears was Rs.11.00 lakh, however the matter was

settled and as final settlement, the accused has issued cheque

for Rs.7,50,000/-. The learned Counsel for the revision

petitioner would submit that in Acquittance Roll produced

before the Court, it reveals that the accused has received salary

since 2007 to 2012 and that there was no arrears on the part of

the accused. Considering the facts and circumstances of the

case, at this stage, it is just and proper to provide an

opportunity to the accused to produce these documents before

the trial Court and adduce defence evidence, without

expressing any opinion on the merits of the case.

14. A perusal of the order sheet reveals that the accused

has taken sufficient time in the trial Court as well as before the

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appellate Court, and hence it is just and proper to impose a

cost of Rs.10,000/-. Accordingly, appellant has made out a

ground to allow the application filed under Section 391 of Code

of Criminal Procedure. Hence, the point formulated is answered

in the affirmative.

15. In the result, I proceed to pass the following:

ORDER

(i) Revision petition is partly allowed with cost of Rs.10,000/-;

(ii) Judgment of conviction and order on sentence 20th July 2015, passed in CC No.7845 of 2014 by The XII Additional Chief Metropolitan Magistrate, Bengaluru, which is confirmed by order dated 31st December 2018 passed in Criminal Appeal No.1084 of 2015 by the 55th Additional City Civil & Sessions Judge, Bengaluru (CCH - 56), are set aside;

(iii) Application filed by the revision petitioner under Section 391 of Code of Criminal Procedure is allowed and the matter is remanded back to the trial Court with a direction to provide opportunity to the accused/Revision Petitioner for further cross-

examination of PW1 and also to adduce

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defence evidence, if any, before the trial Court;

(iv) The trial Court is also directed to record fresh statement under Section 313 of the Code of Criminal Procedure, in accordance with law;

(v) The complainant is also liberty to adduce further evidence, if any, before the trial Court;

(vi) Accused shall deposit an amount of Rs.3,10,000/- before the trial Court within 15 days from today and upon such deposit, the same shall be kept in fixed deposit in any nationalised Bank in the name of the Court under auto-renewal scheme for a period of six months;

(vii) Both the parties are directed to appear before the trial Court on 23rd June 2025, without waiting for further notice in this regard.

(viii) The trial Court is requested to dispose of the matter within two months from the date of appearance of parties;

(ix) Revision petitioner shall pay the cost of Rs.10,000/- to the complainant on or before 23rd June, 2025.

Sd/-

(G BASAVARAJA) JUDGE LNN