IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF JANUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE P.S. DINESH KUMAR CRIMINAL PETITION No.8675 OF 2018 BETWEEN:
H.P. JAYAPPA S/O BENAKAPPA AGED ABOUT 49 YEARS OCC:ASSISTANT TEACHER R/A #84, RATHNAKARA NAGARA 3RD CROSS, SAVALANAGA ROAD SHIVAMOGGA TOWN-577 201 AND ALSO:
WORKING AS ASSISTANT TEACHER, H.P.S. ODEYARAPURA, ANAVERI POST HOLEHONNUR HOBLI BHADRAVATHI TALUK-577 301 ... PETITIONER (BY SHRI. C. GOPALAKRISHNA MURTHY, ADVOCATE) AND:
MANJUNATH.P.M S/O MAHESHWARAPPA AGED ABOUT 44 YEARS R/A NO.126, 1ST FLOOR, ARAVIND PLAZA, 50 FEET ROAD HANUMANTHA NAGARA BENGALURU-560 019 REPRESENTED BY GPA HOLDER DHEERAJ KUMAR.G.S S/O SHIVASHANKAR.G 24 YEARS R/A NO.42/9, 9TH CROSS MARUTHI NAGARA ITTAMADU MAIN ROAD BANASHANKARI 3RD STAGE BENGALURU-560 085 ... RESPONDENT (BY SHRI. GIRISH B.BALADARE, ADVOCATE) THIS CRL.P IS FILED U/S 482 CR.P.C PRAYING TO SET ASIDE THE IMPUGNED ORDER DATED 13.11.2018 IN C.C.NO.20752/2017 AT ANNEXURE-B ON THE FILE OF XII ADDITIONAL AND XXXVII ADDL. C.M.M., BENGALURU, SCCH-8, AND ALLOW THE APPLICATION FILED BY THE PETITIONER U/S 311 OF CR.P.C. DATED 25.10.2018 AT ANNEXURE-C PENDING ON THE FILE OF XII ADDITIONAL AND XXXVII ADDL. C.M.M., BENGALURU, SCCH-8.
THIS CRL.P COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Heard.
2. Petitioner is accused of offence punishable under Section 138 of the Negotiable Act pursuant to alleged dishonour of a cheque issued by him to the respondent. During the course of trial, he filed an application under Section 311 of Cr.P.C. to examine one Yogendrappa who is said to be one of the colleagues of petitioner. The reasons assigned in the application is that cheque in question was in fact given to one Nijalingappa who has misused the same and handed it over to the complainant-respondent. Nijalingappa refused to return the cheque and there was exchange of heated words in the school premises in which Yogendrappa is a witness. On this premise, petitioner sought to examine said Yogendrappa. Learned Magistrate by the impugned order has dismissed the said application by holding that he is not a necessary witness.
3. Shri Girish B.Baladare, learned advocate for the respondent argued in support of the of the impugned order.
4. The specific contention urged in the application filed under Section 311 Cr.P.C. is that there was a quarrel in front of the school and therefore, the said witness Yogendrappa was necessary to bring out truth before the Court.
5. It is petitioner’s case that cheque in fact was given to one Shri Nijalingappa, who in turn has handed over to one *Manjunath. To ensure fair trial, it would *correction carried out vide court order dated 01.02.2019.
be appropriate to permit the accused to examine the witness, Yogendrappa.
6. In the circumstances, this petition merits consideration and it is accordingly allowed. The order dated 13.11.2018 in C.C.No.20752/2017 passed by the XII Additional and XXXVII ACMM Court, Bengaluru, is set aside. The application filed under Section 311 of Cr.P.C. is allowed. Petitioner is permitted to examine the said Yogendrappa on the next date of hearing which is said to be 02.02.2019 without seeking any adjournment.
No costs.
Sd/- JUDGE Yn.