IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF JULY, 2019 BEFORE THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION No.8421/2015 A/W CRIMINAL PETITION No.8422/2015 BETWEEN:
SHRI.M.V.KRISHNA MURTHY, S/O. OF SHRI.N.N.VENKATARAMAIAH, AGE-56 YEARS, NO.370, 9TH CROSS, 3rd MAIN, SRIGANDHADA KAVAL, ANNAPURNESHWARINAGAR, BENGALURU-560 072.
(BY SRI.G.S.BHAT, ADVOCATE) ... COMMON PETITIONER AND:
SHRI.K.GURUPRASAD, S/O. SHRI.G.KRISHNAPPA, AGE 43 YEARS, EXECUTIVE DIRECTOR, MALLIKA ARECANUTS PVT. LTD., NO.19, APMC YARD, SAGAR:577 401, SHIMOGA DISTRICT.
(BY SRI.K.N.BALARAJ, ADVOCATE) ---
... COMMON RESPONDENT CRL.P.No.8421/2015 IS FILED U/S.482 OF CR.P.C PRAYING TO QUASH THE ORDER DT.02.12.2015 IN C.C.No.17/2012 PENDING BEFORE THE SENIOR CIVIL JUDGE AND J.M.F.C. AT SAGAR.
CRL.P.No.8422/2015 IS FILED U/S.482 OF CR.P.C PRAYING TO QUASH THE ORDER DT.02.12.2015 IN C.C.No.147/2011 PENDING BEFORE THE SENIOR CIVIL JUDGE AND J.M.F.C. AT SAGAR.
THESE CRIMINAL PETITIONS COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Heard learned counsel for petitioner and learned counsel for respondent. Perused the records. The parties are common in both the petitions.
Petitioner was facing trial for the offence under section 138 of Negotiable Instruments Act. Controversy having arisen regarding the procedure to be followed after the change of Presiding Officer, the matter had reached this Court in Criminal Petition No.49/2013 c/w. Criminal Petition No.48/2013 and by order dated 12.06.2015, by following the law laid down by the Hon’ble Supreme Court in J.V.BAHARUNI vs. STATE OF GUJARAT, (2014) 10 SCC 494, this Court passed the following order:-
“In the result petition is allowed and the learned Magistrate is directed to proceed further from the stage at which the case is now pending and decide the same with expedition and within a period of three months from the next hearing date.”
2. It is not in dispute that as on the date of passing the above order, the matter was set down for argument of petitioner/accused. At that stage, complainant (respondent herein) filed applications under section 311 Cr.P.C. to reopen the evidence of complainant for the purpose of marking certified copy of judgment in O.S.No.3379/2007. By the impugned order, learned Magistrate allowed both the applications and permitted the complainant to adduce further evidence.
3(i). The contention of learned counsel for petitioner is that the orders passed by the learned Magistrate run counter to the order passed by this Court in Criminal Petition No.49/2013 c/w. Criminal Petition No.48/2013. In the said order this Court had specifically directed the learned Magistrate to proceed from the stage at which the case was pending at the time of remand. Learned Magistrate, therefore, has erred in entertaining the applications and hence, the impugned orders are, liable to be quashed.
(ii) Further, placing reliance on the decision of the Hon’ble Supreme Court in AG vs. SHIV KUMAR YADAV & Another, AIR 2015 SC 3501, learned counsel has emphasised that learned Magistrate has not assigned any reasons for allowing the applications and on this score also, the impugned orders are liable to be quashed.
4. These submissions are disputed by learned counsel for respondent. Learned counsel would submit that the order passed by this Court in criminal petitions do not take away the right of the respondent/complainant to take recourse to appropriate relief under the provisions of the Code and thus seeks to dismiss the petition.
5. Considered the rival submissions and perused the records.
6. I do not find anything in the order passed by this court in Criminal Petition No.49/2013 c/w. Criminal Petition No.48/2013 taking away the right of respondent/complainant from taking recourse to the provisions of the Code. This Court remanded the matter only with an observation that trial shall continue from the stage as pending then. That does not preclude the complainant from taking steps to substantiate his case by reopening the case if he is otherwise entitled to.
7. Section 311 Cr.P.C., empowers the court at any stage of any inquiry, trial or other proceeding under the Code to summon any person as a witness, or examine any person in attendance, or to recall and re-examine any person already examined based on the application filed by the parties. The said section empowers the court to summon or examine or recall and re-examine any witnesses already examined on the application of the parties if their evidence is found necessary and essential to the just decision of the case.
8. No doubt as already noted in the decision referred to by learned counsel for petitioner, such applications cannot be decided by the Trial Court mechanically without applying its mind, but as long as Trial Court is of the opinion that recall and re-examination of any witness or production of documents is necessary for fair decision in the matter, the said right cannot be curtailed solely because the matter was remanded to the Trial Court with direction. Therefore, I do not find any merit in the contentions urged by the learned counsel for the petitioner.
9. Insofar as the second contention urged by the learned counsel for petitioner is concerned, I find that appropriate reasons are assigned by learned Magistrate to allow the applications. A perusal of the impugned orders reveals that learned Magistrate has applied his mind to the facts of the case and has noted that if certified copies of the documents sought to be produced are rejected, the complainant would be put to hardship and it will lead to multiplicity of proceedings, whereas if said applications are allowed, no harm would be caused to the accused as he will be afforded with an opportunity to cross-examine the complainant. The Trial Court having assigned reasons for allowing the applications, no fault could be found with the impugned orders warranting interference under section 482 of Cr.P.C.
Consequently, petitions are dismissed.
Sd/- JUDGE Bss