IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF MAY, 2017 BEFORE THE HON’BLE MR. JUSTICE K.N.PHANEENDRA CRIMINAL PETITION NO.7276 OF 2013 BETWEEN H.S.RAMU AGED 51 YEARS S/O.LATE SEETHARAMAIAH R/O.NO.1127, 11TH MAIN ROAD SRI.KRISHNADHAMA, WEST OF CHORD ROAD 2ND STAGE, NAGAPURA MAIN ROAD MAHALAKSHIPURAM BANGALORE – 560 086.
... PETITIONER (BY SRI.G.SURESH., ADV.,) AND K.RAGHUNANDAN AGED 48 YEARS S/O.D.P.K.ACHAR R/O.NO.1131, 18TH CROSS 24TH MAIN, BSK II STAGE BANGALORE – 560 070.
... RESPONDENT (BY SRI.T.S.GURUNATH., ADV.,) THIS CRL.P IS FILED U/S.482 OF CR.P.C. PRAYING TO SET ASIDE THE ORDER DATED 8.4.13 PASSED BY THE XXII ACMM AND XXIV ASCJ, BANGALORE IN C.C.NO.11865/2004 AND ITS CONFIRMATION BY THE ORDER DATED 21.10.2013 PASSED BY THE V ADDL. CITY CIVIL AND S.J., BANGALORE CITY IN CRL.R.P.NO.149/13 AND FURTHER PERMIT HIM TO EXAMINE THE SIX WITNESSES AS PRAYED FOR HIM IN HIS APPLICATION DATED 22.2.13.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R Heard the learned counsel for the petitioner and the respondent. Perused the record.
2. The present petition is filed calling in question the order passed by the learned Magistrate, 22nd ACMM, Bangalore in C.C.No.11865/2004 dated 08.04.2013 and also the order of the 5th Additional City Civil and Sessions Judge, Bangalore City in Crl.RP.No.149/2013 dated 21.02.2013.
3. In both the above said orders, the Courts have refused to grant an opportunity to the accused to lead evidence on his side and the application filed by the accused- petitioner under Section 233 (1) of Cr.P.C. has been rejected.
4. The factual aspects disclose that the accused after his examination under Section 313 appears to has filed an application for examination of six witnesses on his side. The trial Court has rejected the said application on the ground that the burden is on the complainant to prove the case more specifically with regard to the existence of the debt or liability of the accused. The accused can prove his case by means of preponderance of probability. Secondly, on the ground that the accused has not explained as to the relevancy of the witnesses to be examined before the Court. Being aggrieved by the said order of rejection, the accused approached the Sessions Court and in turn, the Sessions Court has also taken note the issuance of cheque has been admitted by the accused including the signature but the existence of liability which is legally recoverable debt has been disputed by the accused and also accused has taken up the contention that he has only taken a sum of Rs.30,000/- for his need which has been repaid to the complainant. The learned Sessions Judge also has come to the conclusion that Section 233 (1) is only applicable to the Sessions trial and the accused is not entitled to any remedy under the provision.
5. Both the Courts have lost the sight of the basic Principles of Criminal Jurisprudence that whenever the presumption is raised in favour of the complainant, an opportunity shall be granted to the accused to rebut the said presumption. Admittedly, in the order of the learned Magistrate, a presumption is raised under Section 139 in favour of the complainant with regard to the liability i.e., the existence of a debt or liability on the part of the accused. Once the cheque is established, then disproving the said factual aspect or rebutting the presumption, accused can prove his evidence by means of Preponderance of Probabilities. That itself does not mean to say that, accused shall prove his case only in a particular manner. The accused is at liberty to examine any of the witnesses on his side including himself and also cross-examine the witnesses of the complainant’s side. If the accused is satisfied with the cross-
examination of the complainant and his witnesses, then he need not lead any evidence on his side, it is his desertion but that itself is not sufficient to close the doors of the Court permanently from examining any witness on his side.
6. Therefore, looking to the above factual aspect and the observations of the trial Court and the Sessions Court, both Courts have failed to follow the basic Principles of Criminal Jurisprudence i.e., Principles of natural justice. An opportunity to the accused at all the stages is hallmark of Criminal Jurisprudence. Hence, I am of the opinion that, on the technical ground, the Revisional Court and the trial Court have erred in rejecting the application.
7. Learned counsel for the petitioner draws my attention to Chapter 20 of the Cr.P.C. which empowers the Magistrate to examine any of the witnesses and it can also direct any person or authority to lead evidence which is relevant to the case.
8. However, on perusal of the application filed by the accused, the relevancy of examination of the witnesses has not been specifically stated. However, the relevancy is not necessary at that stage to reject the said application. The relevancy has to be considered at the time of examination of the witnesses before the Court. However, the learned counsel for the petitioner undertakes the he would furnish the details of the witnesses along with the relevancy for which the said witnesses are sought to be examined before the Court.
9. The learned counsel is directed to furnish the copy of the same to the other side and at the time of examination of the witnesses, the Court can consider whether such witnesses required to be examined or not.
10. With these observations, the orders of both the Courts are liable to be set aside. As the matter is of the year 2004 and still the matter is pending before the trial court, I feel it just and necessary to stipulate the time for disposal of the case. In view of the above, I pass the following:
ORDER i) The petition is allowed.
ii) The application filed by the accused for examination of the witnesses is hereby allowed subject to the condition that counsel for the accused furnishing the details of the witnesses along with the relevancy for which the said witnesses are sought to be examined before the Court after furnishing the copy to the other side.
iii) The learned Magistrate is directed to permit the accused to lead evidence and the learned Magistrate can consider the relevancy of examination of those witnesses at the time of examination of the witnesses.
iv) The learned Magistrate is directed to conclude the trial within three months from the date of receipt of copy of this order and both the parties shall co-operate with the Court for disposal of the case as early as possible within the stipulated time.
Sd/- JUDGE VM