IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY CRIMINAL APPEAL No.863 OF 2017 BETWEEN:
N. Rangaswamy S/o. late Nanjappa, Aged about 39 years, R/at No.865, Sri. Ramanjaneya Nilaya, Thotatadaguddadahalli, Nagasandra Post, Bengaluru North Taluk, Bengaluru – 560 073. ...Appellant (By Sri. K.A. Chandrashekara, Advocate) AND:
S. Mahadevaiah, S/o. Shankaraiah, Major in age, (Gowri Agency), Shivakumaraswamy Layout Road, Near Meese Narayanappa Store, Thotadaguddadahalli, Nagasandra Post, Bengaluru North Taluk, Bengaluru – 560 073. ...Respondent (By Smt. P.C. Vinitha, Advocate for Sri. T.A. Karumbaiah, Advocate) This Criminal Appeal is filed under Section 378(4) of Cr.P.C., praying to set aside the judgment and order dt.06.05.2017 passed by the XIII Addl. C.M.M. Bengaluru in C.C.No.11707/2016 acquitting the respondent/accused for the offence punishable under Section 138 of Negotiable Instruments Act.
This Appeal coming on for Admission, this day, the Court delivered the following:
JUDGMENT The present appeal is filed by the complainant, challenging the judgment dated 06.05.2017 passed in C.C.No.11707/2016 by the XIII Addl. Chief Metropolitan Magistrate, Bengaluru (hereinafter for brevity referred to as “trial Court”) , wherein the trial Court has acquitted the present respondent/accused for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter for brevity referred to as “N.I. Act”).
2. Heard both side. Perused the materials placed before this Court including Lower Court Records.
3. The summary of the case of the complainant in the Court below is that the accused who was running a chit business, for which the complainant was a subscriber for a chit of `1,50,000/- and was paying monthly subscription of `18,000/- i.e., six thousand per chit was in one bid of one chit. On 10.06.2015, he had not paid the chit amount. Thus, the accused was due for a sum of `4,50,000/-, towards the payment of the said amount the accused issued a post dated cheque bearing No.308274, dated 05.03.2016, for a sum of `4,50,000/- drawn on UCO Bank, Hesaraghatta Road Branch, Bengaluru, in favour of the complainant. When presented for realisation, the said cheque returned dishonoured with the shara “Funds Insufficient”. Thereafter, the complainant got issued a legal notice to the accused demanding the payment of the cheque. Since the accused did not meet the demand, the complainant was constrained to institute a criminal case against him for the offence punishable under Section 138 of N.I. Act.
4. In order prove his case, the complainant got himself examined as PW.1 and got marked documents from Exs.P-1 to 6 and closed his side. However, since he did not tender himself for his cross-examination, the matter was proceeded for the purpose of recording the statement of accused under Section 313 of the Code of Criminal Procedure, 1973 (hereinafter for brevity referred to as “Cr.P.C.”) and thereafter, for the defence evidence, if any. However, no evidence was led from the side of accused.
5. After hearing both side, the trial Court vide its impugned judgment acquitted the accused of the alleged offence. Against the said judgment, the complainant has preferred this appeal.
6. Learned counsel for the appellant in his arguments submitted that the absence of the complainant was unintentional, as such, by imposing cost the appeal be allowed and the matter be remanded to proceed further for cross-examination of PW.1. He also relied upon the judgment of this Court passed in Crl.A.No.957/2016, dated 27.11.2018 in his support.
7. A perusal of the order sheet of the Court below would go to show that the complainant in the Court below examined himself as PW.1 and marked documents from Exs.P-1 to 6 on 27.12.2016. Thereafter, few opportunities were given for the appellant/complainant to tender himself for cross- examination. Even though on 04.02.2017 and 10.02.2017 the accused was present, the complainant himself having remained absent did not tender himself for his cross-examination. It is only thereafter the trial court proceeded for recording statement of accused under Section 313 of Cr.P.C. and ultimately pronouncing the impugned judgment.
8. In the case of Sridhar Kumar Bukka Vs.
M/S. C.G. Infra Engineering Limited and another, in Crl.A.No.957/2016, upon which judgment learned counsel for the appellant is relying, this Court on 27.11.2018 had restored the complaint of the complainant filed for the offence punishable under Section 138 of N.I. Act, wherein also the complainant was not cross-examined from the side of accused. However, the point of defence between the said case and case on hand is that in the said case the accused was also absent and non-bailable warrant issued against him has repeatedly remained unserved. Further, the said case came to be dismissed by the trial Court for non-prosecution, whereas in the case on hand as observed above, the accused was present, so also his counsel, but the complainant PW.1 himself did not tender himself for cross-examination.
9. Secondly, the matter proceeded further for recording statement of accused under Section 313 of Cr.P.C. and then for several dates of hearing it was posted for defence evidence, if any and thereafter, it was posted for arguments. Ultimately, a judgment came to be passed on merit. Thus, unlike the judgment which the learned counsel for the appellant has relied upon, here the case proceeded on merit and after completing all the stages, it was not dismissed for non- prosecution, as in the case which was relied upon by the learned counsel for the appellant. Therefore, the said judgment relied upon by learned counsel for the appellant would not enure to his benefit.
10. In the instant case, as already observed above, even after the complainant did not tender himself for cross examination, the trial Court proceeded further in the matter, recorded the statement of accused under Section 313 of Cr.P.C., gave opportunity to the accused to lead his evidence and then heard arguments from both side. At the next dates of hearing, the complainant has not made any attempt through any appropriate petition or appeal to get the order of posting the matter for defence evidence to recall and seek permission to tender himself for cross examination. Knowing fully well about the proceeding that was going on, he kept quiet till the trial Court pronounced judgment on merits and has approached this Court through this appeal.
11. The trial Court has elaborately discussed on merits of the case of the complainant, however, at the conclusion paragraph, it has stated that “since the evidence of complainant not testified through the test of cross-examination, no evidentiary value could be attached to his evidence.” The same being the fact, it does not warrant any interference at the hands of this Court.
Accordingly, the appeal stands dismissed as devoid of any merits for admission.
Sd/- JUDGE BMC