IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21st DAY OF JANUARY, 2019 BEFORE THE HON’BLE MR.JUSTICE ARAVIND KUMAR CRIMINAL PETITION NO.9810/2017 BETWEEN:
K. RAJASHEKAR S/O LATE KRISHNAPPA AGED ABOUT 51 YEARS R/AT KENCHAMUNIYAMMA STREET WARD NO.3, NEW PET BANGALORE-562106.
... PETITIONER (BY SRI. SHIVARAMA BHAT O, ADVOCATE) AND:
R. RAJENDRA REDDY S/O RAMA REDDY AGED ABOUT 48 YEARS R/AT KSRTC COLONY HOSUR MAIN ROAD SITE NO.60, ANEKAL TALUK BANGALORE DISTRICT-562106.
(BY SRI. OMAKARA BASAVAPRABHU FOR SRI. R. SRINIVAS, ADVOCATE) ... RESPONDENT THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 CR.P.C. PRAYING TO SET ASIDE THE ORDER DATED 04.12.2017 PASSED BY THE III ADDITIONAL DISTRICT AND SESSIONS JUDGE, BANGALORE RURAL DISTRICT, SITTING AT ANEKAL IN CRL.R.P.NO.5053/2017 WHICH HAS ARISEN OUT OF THE ORDER DATED 12.10.2017 PASSED BY THE PRINCIPAL CIVIL JUDGE AND JMFC AT ANEKAL IN C.C.NO.392/2015.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Heard Sri.O Shivarama Bhat, learned Advocate appearing for petitioner and Sri. Omkara Basvaprabhu, learned Advocate appearing on behalf of Sri. R. Srinivas for respondent. Perused the records.
2. Petitioner is accused in C.C.No.392/2015 which proceedings have been initiated by respondent under Section 200 Cr.P.C r/w Section 138 of Negotiable Instrument Act, 1881 (for short ‘NI Act’) alleging thereunder that cheque issued by petitioner herein on its presentation has been dishonored and thereby petitioner has committed an offence punishable under Section 138 of NI Act.
3. It is the contention of Sri. Shivaram Bhat, learned Advocate appearing for petitioner-accused that contents of the cheque -Ex.P.1 in question has been filled up by the complainant and except to the extent of admitting the signature by petitioner all the contents have been denied and as such, an application came to be filed by petitioner - accused under Section 45 of the Evidence Act, 1872 for referring the cheque –Ex.P.1 for securing expert’s opinion has been erroneously rejected by the trial Court and affirmed by the revisional Court. It is contended that Section 20 of NI Act would have no application while considering the prayer for referring the cheque for securing expert’s opinion and no prejudice would be caused to respondent-complainant if application in question is allowed. Hence, he prays for allowing the application filed by the petitioner - accused under Section 45 of the Evidence Act, 1872 by relying upon the following judgments.
(i) AIR 2008 SC 2010-
T.Nagappa vs. Y.R. Muralidhar (ii) 2010 Cri. L.J.1510-
Ishwar s/o Mahadevappa Hadimani vs. Suresh s/o Rachappa Pattepur.
(iii) 2014 (3) KCCR 2222 N.Muniswamy Reddy s. M. Narayanaswamy 4. Per contra, Sri. Omkara Basvaprabhu, learned Advocate appearing for respondent would support the impugned order by relying upon the judgment of this Court in Crl.P.No.2597/2017 decided on 20.02.2018.
5. Insofar as contention of Sri.Shivarama Bhat, learned Advocate appearing for petitioner with regard to non-applicability of Section 20 of NI Act to a cheque is concerned, it requires to be considered for the purpose of outright rejection, inasmuch as, Section 13 of the NI Act would clearly indicate that cheque is also a negotiable instrument and as such, applicability of Section 20 of NI Act to a cheque cannot be excluded. Hence, said contention stands rejected.
6. Under Section 139 of the NI Act, a presumption arises to the effect that there is implied authority to the payee from the holder of the instrument to make other writings in the said instrument so as to complete the instrument vide Section 20 of the NI Act. Even otherwise, the defence that is available to the accused has to be raised at the first available opportunity and in the instant case, there is no dispute to the fact that filing of complaint under Section 200 of the Cr.P.C was preceded by issuance of a legal notice and same was not replied to by the petitioner-accused. Even thereafter, namely, after evidence of complainant came to be concluded and statement under Section 313 Cr.P.C. came to be recorded, petitioner-accused did not raise his little finger to contend that he has further evidence to tender with regard to expert’s opinion on the subject cheque- Ex.P.1. Only on 07.09.2017, application in question came to be filed i.e., after lapse of 2 years from the date of appearance (06.05.2015).
7. It is in this background, Hon’ble Apex Court in the case of T.NAGAPPA VS. Y.R. MURALIDHAR reported in AIR 2008 SC 2010 has held that an opportunity which must be given to the accused to adduce evidence in rebuttal to the evidence tendered by the complainant should be at the first available opportunity and it has been further held that accused should not be allowed to unnecessarily protract the trial or summoning of the witness whose evidence would not at all be relevant. In fact, discretion is left to the Magistrate for recalling the witnesses. Even when accused knows that he has to lead evidence in rebuttal, keeps silence or does not take steps at the fist available opportunity, he cannot be heard to contend that at all stages to come, he can lead such evidence.
8. In that view of the matter, this Court finds there is no merit in this petition. Accordingly, criminal petition stands dismissed.
It is needless to state that trial Judge without being influenced by any observation made either in this order or in the order rejecting the application filed under Section 45 of Evidence Act, 1872 and its confirmation thereof, by revisional Court shall be taken note of while adjudicating the proceedings on merits.
SD/- JUDGE RU