IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 2ND DAY OF DECEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE G.NARENDAR CRL.P.NO.8156/2019 BETWEEN:
SRI E.NAGARAJA, S/O E.SRIRAMULUSHETTY, AGED ABOUT 60 YEARS, RESIDING AT NO.1388, 1ST FLOOR, 1ST MAIN ROAD, GANDHI NAGAR, YELAHANKA, BANGALORE – 560 064. … PETITIONER (BY SRI S.N.ASWATHANARAYAN, ADV.) AND:
SRI A.P.KRISHNA KUMAR, S/O A.R.PARAMESHWARAN, AGED ABOUT 56 YEARS, RESIDING AT NO.20, SKANDA, 1ST MAIN ROAD, BALAJI LAYOUT, VIDYARANYAPURA, BANGALORE – 560 097. … RESPONDENT THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 23.10.2019 REJECTING THE INTERLOCUTORY APPLICATION FILED BY THE PETITIONER U/S 311 CR.PC SEEKING RECALL THE ORDER DATED 18.10.2019 AND PERMIT THE PETITIONER TO CROSS-EXAMINE THE PW1 ON THE FILE OF THE LEARNED XVIII ADDITIONAL CHIEF METROPOLITAN MAGISTRATE, BENGALURU, IN C.C.NO.26710/2016.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER 1. Heard the learned Counsel for the petitioner.
2. Petitioner is before this Court being aggrieved by the order dated 18.10.2019, whereby the Trial Court has been pleased to reject the application preferred by the petitioner- accused under Section 311 seeking for further cross- examination of PW-1.
3. The Trial Court after taking note that the petitioner has failed to avail of the opportunities granted on 27.09.2019 & 03.10.2019, has been pleased to reject the said application.
4. It is submitted by the learned Counsel for the petitioner that the matter is listed for hearing tomorrow (03.12.2019) and he would submit that if an opportunity is granted, petitioner would continue with the cross- examination tomorrow itself. He would submit that the petitioner-accused would proceed with the cross-
examination without seeking any adjournments and without seeking any further dates.
5. The provisions of the N.I.Act permits the drawing up of presumption in favour of the holder of the cheque and the onus is cast on the accused to let in rebuttal evidence and thereby rebutt the presumption that may be drawn in favour of the holder of the cheque. In that view of the matter, this Court is of the opinion that one more opportunity could be granted to the petitioner-accused to further cross-examine PW-1.
6. Learned Counsel for the petitioner submits that he does not press the application preferred under Section 91 Cr.PC and that the petitioner may be granted opportunity only in respect of the application preferred under Section 311 Cr.PC.
7. In that view of the matter, this Court is of the considered opinion that the petitioner has made out a case for granting him an opportunity to complete further cross- examination of PW-1.
8. Accordingly, this petition is allowed in part. The order dated 18.10.2019 is set aside. The Trial Court shall permit the petitioner to further cross-examine PW-1 subject to the condition that the petitioner shall proceed with the further cross-examination of PW-1 without seeking any further adjournments. In the event if the petitioner seeks any adjournment for further cross-examination of PW-1 before the Trial Court, petitioner would not be entitled to the benefits under the instant order. It is made clear that the cross-examination shall be on the next date of hearing or as and when PW-1 presents himself for cross-examination.
Sd/- JUDGE KK CT-HR