IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL REVISION PETITION NO.165 OF 2019 BETWEEN:
Nirmala W/o Ramappa H.R, (Nagamma Priest), Aged about 40 years, Hoonkaladavaramane Someshwara Nagar R/o Gudavi Village, Sorab Taluk, Shivamogga District-577 429.
(By Sri. Umesh P.B, Advocate for Sri. Ravindra B. Deshpande, advocate) AND:
S.N. Ravindra Kamath S/o S.V. Narasimha Kamath Aged about 28 years, R/o S.N.Nagar, 1st Cross, New Extension, Sagar Town, Shivamogga District-577 401.
(By Sri. Chidambara, Advocate) ...Petitioner ...Respondent This Criminal revision petition is filed under Section 397 and 401 of Criminal Procedure Code, praying to set aside judgment and order dated 30.11.2018 passed by the V Additional District and Sessions Judge, Shivamogga Sitting at Sagar in Crl.A.No.10017/2018 and the Judgment and order of conviction and sentence dated 12.07.2018 passed by the Principal Civil judge and JMFC, Sagar in C.C.No.292/2016 (Convicted for the offence punishable under Section 138 of N.I.Act) and acquit the petitioner of charges leveled against her.
This Criminal revision petition coming on for Orders, this day, the Court made the following:
ORDER The present revision petition has been filed by the petitioner-accused challenging the legality and correctness of the judgment passed by V Additional District and Sessions Judge, Shivamogga, sitting at Sagar in Crl.A.No.10017/2018 dated 30.11.2018, whereunder the judgment of the trial Court was confirmed by dismissing the appeal.
2. I have heard the learned counsel for petitioner-accused and the learned counsel for respondent-complainant. Though this case is listed for interlocutory application, with the consent of learned counsel for the parties, same is taken up for final disposal.
3. The case of the complainant in brief is that, the accused and complainant knew each other. Because of some financial problem, an amount of Rs.2,00,000/- was given to the accused on 15.09.2015. He promised to pay the same within three months. When complainant demanded to make payment, he issued cheque bearing No.749052 drawn on Karnataka Bank Ltd., branch and when the complainant presented the said cheque for encashment, the same was returned as dishonored with shara as “funds insufficient” on 14.01.2016. On 20.01.2016 complainant got issued legal notice and it was served to the accused on 25.01.2016. Even after service of notice, no payment has been made and contemplated under law and as such the complaint was filed.
4. It is further noted that learned Magistrate after recording the sworn statement, took cognizance and secured the presence of the accused and his plea was recorded. Accused pleaded not guilty. He claims to be tried and as such complainant got examined himself as PW1 and got marked 5 documents as EX.P1 to Ex.P.5. Thereafter, the statement of the accused was recorded and the accused has not led evidence. After hearing learned counsel appearing for the parties, the impugned judgment came to be passed.
5. First and foremost contention which has been taken up by the learned counsel for the petitioner- accused is that, the judgment and the order of conviction passed by the court below is illegal and contrary to evidence and material placed on record. The trial Court has not considered the fact that the petitioner-accused was seriously ill and was unable to instruct the counsel on record for cross examination of the complainant and as such the complainant has not been cross examined under unavoidable circumstances and it has resulted into great hardship and injustice. It is further contended that the said ground has also taken by first appellate court and first appellate court has also not considered the fact. It is further contended that the complainant was not in a sound position to lend a loan and complainant misused the circumstances and obtained cheque and same has been misused. This aspect has not been considered and appreciated by the court below. It is further submitted that without giving full liberty and appropriate opportunity, in justice has been caused to the petitioner. If the matter is remitted to Court below with a direction to give opportunity, it is going to meet the ends of justice. On these grounds, he prays to allow the petition and remit the case to the court below.
6. Per contra learned counsel for the respondent vehemently argued and submitted that the order sheet of the trial court clearly goes to show that the accused was not diligent and has not utilized the opportunity given to him. It is his further submission that sufficient opportunity has been given to the accused to cross examine the complainant and even in spite of giving sufficient opportunity, complainant has not been cross examined. It is his further submission that after recording the statement of the accused, the case was posted for defence evidence in spite of that he has not led any evidence. He further submitted that neither he has filed any application nor he has used the opportunities. Under such circumstances, the court below as well as first appellate court has come to a right conclusion and have rightly convicted the accused and the first appellate court has dismissed the appeal. He further submitted that the ground mentioned in the appeal was that, he was suffering from ill health, but not even single document has been produced to substantiate his contention. In that light also, the present revision petition is liable to be dismissed and dismiss the petition by confirming the order of the trial Court.
7. I have carefully and cautiously gone through the submissions made by learned counsel appearing for the parties and perused the records, including the lower court records. Only one contention which has been taken up by the learned counsel for the petitioner is that the accused has been deprived of an opportunity and he has not cross-examined the complainant to putforth his defence. He has further contended that due to ill health that the accused has not given any instruction to the counsel and he has not cross examined. By going through the order sheet it indicates that sufficient opportunity has been given to the accused to cross examine and thereafter the statement of the accused has been recorded and the case has been posted for defence evidence. In that light also, he has not cross examined the complainant nor led any evidence in that behalf. In that light, the submission made by the learned counsel for the respondent appears to be justifiable. But however by going through the records, it appears that the accused has not been exhausted with full opportunity to cross examine PW.1 – complainant and he has also not got examined to disprove the case of the complainant. It is the duty of the Court ultimately to ascertain the truth by the factual matrix produced by the parties. But if one party is having advantage and another party is having full material, then under such circumstances, in order to meet the ends of justice an opportunity to be given to the parties to lead the evidence and thereafter to prove their case. In that light, I am of the considered opinion that if opportunity is given to both the parties then it is going to meet the ends of justice. In that light, order of the first appellate court as well as trial court are liable to be set aside. But however, it is made clear that the amount of Rs.1,10,000/- has been deposited before the Court below by the accused and the same may be paid to the respondent-complainant on proper identification and acknowledgment as per Section 148 of N.I.Act by taking adequate indemnity and security.
8. With the above observations, the criminal revision petition is allowed and the judgment of V Additional District and Sessions Judge, Shivamogga sitting at Sagar in Crl.A.No.10017/2018 dated 30.11.2018 is set aside and matter is remitted to the court below with a direction to opportunity to both the parties for cross examination and leading their evidence and thereafter to dispose the case in accordance with law.
9. Both the parties are directed to appear before the court below without further notice on 09.12.2019 and after appearance of the parties, the trial Court is directed to dispose of the said case with an outer limit of six months from the date of receipt of the records. Registry is directed to send back the records forthwith.
In view of the disposal of the main petition, IA.No.2/2019 does not survive for consideration and accordingly, IA.No.2/2019 is disposed off.
Sd/- JUDGE ag