IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF FEBRUARY, 2019 BEFORE THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION No.8582/2015 BETWEEN:
Sri. Annappa shetty, S/o. late Mahabala Shetty, Aged about 50 years Residing at “Amrith”, Shanar Bettu, Post: Perdoor, Udupi Taluk, Udupi Dist.576 124 (By Mr. Jayakara Shetty, Advocate) AND:
…Petitioner Sri. S. Vishwanath Shetty S/o. A. Manjaiah shetty, Aged about 48 years, Residing at No.5, West of Chord Road, 3rd Cross, Industrial Town, Mahaganapathy Nagar, Bangalore. 560 044.
*** ...Respondent This Criminal petition is filed under Section 482 of Cr.P.C. praying to set aside the impugned order dt.4.11.2015 made in C.C.No.24787/2014 by the Court of XXII Additional Chief Metropolitan Magistrate, at Bengaluru in so far it relates to rejection of the application filed by the petitioner on 29-10-2015 under Section 311 Cr.P.C. for recalling the order dt.28-10-2015 and to lead further cross examination of PW1 and to allow the application filed by the petitioner dt.29.10.2015 under Section 311 Cr.P.C., etc.
This Criminal petition coming on for Admission, this day, the Court made the following:
O R D E R The petitioner is aggrieved by the order passed by the learned XXII Additional Chief Metropolitan Magistrate, Bangalore, rejecting the application filed by him under Section 311 of the Code of Criminal Procedure.
2. Heard the learned counsel for the petitioner.
Respondent is served and unrepresented.
3. The petitioner was facing trial for the offences punishable under Section 138 of the Negotiable Instruments Act.
4. PW1, viz. the complainant tendered himself for cross-examination on 09/07/2015, 29/07/2015 and 05/08/2015, but the counsel for the accused sought time and the cross examination was deferred at his instance. On 28/10/2015, when PW1 was present, once again time was sought for cross-examination and hence further cross examination of PW1 was taken as ‘Nil’. On the same day, petitioner filed an application under Section 311 of Cr.P.C. seeking to recall PW1 on the ground that his counsel could not be present before the Court on account of ill-health. However, observing that both the parties are following dilatory tactics, the learned Magistrate deemed it proper to dismiss the said application.
5. Having regard to the fact that PW1 was recalled for proving the additional documents, in my view, one more opportunity is required to be afforded to the petitioner to cross-examine PW1, so as to substantiate the defence set up by him, subject to payment of heavy costs.
6. Accordingly, the petition is allowed.
The order passed by the learned Magistrate on the application filed by the petitioner/accused under Section 311 of Cr.P.C. is set aside. The application filed by the petitioner under Section 311 of Cr.P.C. is allowed, subject to payment of costs of `3,000/-. PW1 is directed to be present for cross examination on the date fixed by the Trial Court. The Trial Court shall fix a date for cross examination of PW1, on which date, the petitioner/accused shall pay the aforesaid costs to PW1 and shall cross examine PW1 without seeking any further adjournment.
In the event the petitioner/accused seeks further time to cross examine PW1 on the scheduled date or fails to pay the costs as ordered, this order shall become inoperative.
Sd/- JUDGE BMV*