IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL REVISION PETITION NO.1205 OF 2019 BETWEEN:
Smt.Shail Shankar Rao, Aged about 47 years, R/o No.49/2, 16th Cross, 4th Main, Opp:Himamshi School, Malleswaram, Bengaluru – 560003.
(By Sri. Chidambara.G.S, Advocate) AND:
Ravindra, Aged about 48 years, S/o.M.R.Seetharamaiah, M/s Suprathik Pharma, No.1, 2nd temple road, 15th cross, Malleshwaram, Bengaluru – 560003.
...Petitioner ...Respondent This Criminal Revision Petition is filed under Section 397 read with 401 of Cr.P.C., praying to set aside the judgment and order dated 06.08.2019 passed by the Court of the LVIII Additional City Civil and Sessions Judge CCH-59 Bengaluru City in Crl.A.No.1407/2017 setting aside the judgment and order dated 01.09.2017 passed by the Court of the XX A.C.M.M., at Bengaluru in C.C.No.11634/2013 and remanding back the case to the trial Court for fresh disposal.
This Criminal Revision Petition coming on for Admission, this day, the Court made the following:
ORDER This petition has been filed by the petitioner/complainant challenging the judgment passed by the LVIII Additional City Civil and Sessions Judge (CCH-59), Bengaluru City in Crl.A.No.1407/2017 dated 06.08.2019.
2. I have heard the learned counsel for the petitioner. Notice to respondent is dispensed with.
3. Though this case is listed for admission, with the consent of learned counsel for the petitioner/complainant, same is taken up for final disposal.
4. It is the contention of the learned counsel for the petitioner that the complainant has filed a complaint against the accused for having failed to pay the amount of Rs.14,50,000/- taken as hand loan and had issued a cheque in discharge of the said debt, the same was returned with shara “Funds insufficient” and even after the legal notice, the said amount has not been paid and as such the complainant filed complaint. The trial Court after recording the evidence of the complainant and after giving full opportunity to the accused convicted the accused. Being aggrieved by the said judgment of conviction and order of sentence accused preferred the appeal.
5. He further contended that the appellate Court without proper consideration of the facts and without there being any contentions raised by the accused erroneously remitted back the case by setting aside the conviction order, such judgment is not sustainable in law. It is his further submission that, non examination of the accused under Section 313 of Cr.P.C by putting the incriminating material after further examination of PW.1/complainant is not fatal to the case of the accused. The accused has not proved that some prejudice has been caused because of the defective recording of the statement of accused. If such objection has not been raised during the trial, then under such circumstances, he is not entitled to take the said benefit. In order to substantiate his arguments he relied upon the decision in the case of Satyavir Singh Rathi v/s State through CBI reported in AIR 2011 SCC 1748. It is his further submission that the order sheet produced clearly goes to show that sufficient opportunity has been given to the respondent/accused to cross examine the complainant, but he has not properly availed the same. He further submitted that even record shows that application has been filed under Section 311 of Cr.P.C to recall PW.1 and same was allowed inspite of that he has not been utilised the best opportunity. The First Appellate Court without looking into the said aspect remitted back the case to the trial Court. On these grounds, he prayed to allow the petition and to set aside the impugned judgment.
6. I have carefully and cautiously gone through the order of the First Appellate Court and also records made available. I am not having difference of opinion with regard to the law laid down by the Hon’ble Apex Court in the case of Satyavir Singh Rathi supra that the prejudice must be shown in order to set aside or to give the opportunity to the accused.
7. By going through the trial Court records, the evidence of PW.1 was recorded on 09.12.2014, case posted for cross examination of PW.1, but he was not cross examined. On 16.02.2015, it was taken as Nil. Thereafter PW.1 was re-called while cross examination of complainant, complainant has produced some documents on 03.04.2015 she has produced account extracts and thereafter on 03.07.2015 further cross examination of PW.1 has been done. At that time some more documents were produced. But as could be seen from records the recording of the statement under Section 313 of Cr.P.C was done on 24.02.2015. Thereafter PW.1 has been recalled twice and produced several documents.
8. Taking into consideration the above said facts and circumstances, the First appellate Court has come to a conclusion that it goes to the root of the matter and matter requires for consideration and as such by setting aside the order of the judgment of the trial Court, remitted back the said case to the trial Court to give opportunity to the accused. Insofar as giving opportunity to the accused is concerned, order sheet goes to show that the trial Court has given full opportunity to the accused, when he filed application under Section 311 of Cr.P.C., the same has been allowed. Even then the accused has not used the opportunity given to him. But, however, the records indicate that after recording of the statement of accused under Section 313 of Cr.P.C. on 24.02.2015, several documents have been produced and PW.1 has been recalled and further examined and cross examined.
9. In that light the observation made by the Court below it appears tobe justified. But, however, the matter is of the year 2013 and the trial Court has opined and remitted it to trial Court. In that light, I am of the considered opinion that if time is fixed for disposal of the case by the Court below then it is going to meet the ends of justice.
10. In that light, petition is disposed with observation that insofar as the remand order of the First appellate Court is concerned, the same has been confirmed. But, however, the trial Court is directed to give full opportunity to both the parties as observed by the First appellate Court and dispose of the case within the outer limit of 4 months from the date of receipt of this order.
In view of the disposal of the main petition, I.A.No.1/2019 does not survive for consideration.
Sd/- JUDGE NS