IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF MARCH, 2019 BEFORE THE HON’BLE MR. JUSTICE K.NATARAJAN CRIMINAL REVISION PETITION No.1217 of 2017 BETWEEN MUNIRATHNAIAH, S/O CHIKKAMUDALAPPA, C/O KADUR RANGAPPA, No.164/1, 2ND MAIN, ANJANEYA TEMPLE STREET, 6TH BLOCK, JAYANAGAR, BANGALORE - 82.
(BY SRI M. SUBRAMANI, ADVOCATE) AND R. CHANDRASHEKAR, S/O M. RAMASWAMY NAYAK, R/AT No.144/3, 2ND MAIN, 7TH CROSS, CHAMARAJPET, BANGALORE - 18.
(RESPONDENT SERVED AND UNREPRESENTED) ... PETITIONER ... RESPONDENT THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 READ WITH 401 CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND CONVICTION DATED 17.09.2009 PASSED IN C.C.No.7831/2005 ON THE FILE OF THE XII ADDITIONAL CHIEF METROPOLITAN MAGISTRATE AT BANGALORE AND SET ASIDE THE JUDGMENT AND CONVICTION DATED 12.10.2017 PASSED IN CRL.A.No.502/2013 ON THE FILE OF THE LII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AT BANGALORE CITY AND TO ACQUIT THE ACCUSED FROM ALL THE CHARGES LEVELED AGAINST HIM.
THIS CRIMINAL REVISION PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Heard learned counsel for the petitioner. Respondent served, but not represented.
2. Before adverting to the arguments addressed by learned counsel for the petitioner, it is worth to mention the factual matrix of the case as under:
The petitioner is accused before the XII Additional Chief Metropolitan Magistrate, Bengaluru, in CC No.7831/2005 having been convicted for the offence under Section 138 of the Negotiable Instruments Act, 1881, (‘Act’ for short). The complainant-respondent herein filed a complaint under Section 200 of Cr.P.C. alleging that a cheque for Rs.1,98,000/- said to have been issued by the accused was dishonoured on its presentation in the Bank. After issuance of notice, the accused failed to repay the amount. Hence, the complaint came to be lodged and upon sworn statement, process was issued under Section 204 of Cr.P.C. The accused appeared before the Court and his plea was recorded and the case was posted for recording the evidence of the complainant. The complainant filed affidavit evidence and got marked 9 documents as per Exs.P.1 to P.9 and opportunity was given to the accused for cross-examination of the complainant-respondent, but the accused remained absent. In spite of issuing NBW, the prosecution was unable to secure his presence hence, the Trial Court passed the order convicting the accused and sentenced him to pay Rs.2,50,000/-, in default, to undergo simple imprisonment for six months and to pay compensation of Rs.1,98,000/- to the complainant/respondent.
Being aggrieved by the same, the accused preferred an appeal before the LII Additional City Civil and Sessions Judge, Bengaluru, in Crl.A.No.502/2013 contending that he did not appear before the Court to cross-examine PW.1 and though an opportunity was sought to cross-examine the respondent, the Appellate Court has not considered the same and has confirmed the order of conviction passed by the Trial Court, but modified imposing of fine of Rs.2,50,000/- and reduced it to Rs.2,00,000/-. Being aggrieved by the same, the accused is before this Court.
3. Learned counsel for the petitioner-accused argued mainly on the ground that an opportunity sought by the accused to cross-examine PW.1 as he is having a good case on merits, but the same was not considered by the Appellate Court. Copies of the deposition is also produced before this Court to show that the accused was absent and an opportunity was given to him to cross-examine PW.1, but he did not turn out. Hence, the cross-examination is taken as complete and the order came to be passed by the Trial Court. Though the petitioner pleaded before the Appellate Court, but the Appellate Court has not considered the same and dismissed the appeal which is not proper. Hence, prayed for allowing of the petition.
4. On perusal of the statement of the respondent produced before the Court and the orders passed by the Trial Court as well as the Appellate Court, it is clear that an opportunity was given to the accused and he remained absent. Therefore, the cross-examination was taken as ‘nil’. Later, the evidence of the respondent and the accused was taken as ‘nil’ and the order came to be passed. The respondent has also not controverted by appearing before the Court.
5. On hearing the arguments and looking to the facts and circumstances of the case, the Trial Court ought to have granted a fair opportunity of hearing to the parties and determined the case on merits, but the same was not considered by the Trail Court, which is erroneous. Hence, without expressing any opinion on the merits, I feel it is a fit case for remanding the matter to the Trial Court for fresh consideration with a direction to give an opportunity to the petitioner to contest the case on merits. Therefore, the petition filed by the petitioner deserves to be allowed. Accordingly, I pass the following;
Order The Criminal Revision petition is allowed. The judgment passed by the Trial Court and confirmed by the Appellate Court is hereby set aside with a direction to the Trial Court to reconsider the matter after giving an opportunity to the petitioner-accused for the purpose of cross-examination of PW.1 and conclude the trial within three months from the date of receipt of copy of the order Both parties shall cooperate with the trial court without seeking any unnecessary adjournments.
SD/- JUDGE mv