IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF OCTOBER, 2017 BEFORE THE HON’BLE MR.JUSTICE ARAVIND KUMAR WRIT PETITION NO.45638/2017(GM-RES) BETWEEN:
SRI.K.T.SHIVAPRAKASH AGED ABOUT 44 YEARS, S/O. K.M.THIMMAIAH, R/O NO.282, NEW BAZAAR STREET, K.R.PURAM, BANGALORE-560036 ...PETITIONER (BY SRI. MOHD. USMAN SHAIKH, ADVOCATE) AND:
SRI.T.RAMAMOORTHY S/O. LATE VENKATESH, AGED ABOUT 50 YEARS, C/O. SATHYANARAYANA, SRI.LAKSHMI NILAYA, LAKESIDE, NETHRAVATHI LAYOUT, K.R.PURAM, BENGALURU-560036 ... RESPONDENT THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED ORDER DTD.28.08.2017 PASSED BY THE HON’BLE LVII ADDITIONAL CHIEF METROPOLITAN MAGISTRATE BANGALORE IN C.C.NO.54078/2015 VIDE ANNEXURE-A ON THE APPLICATION FILED UNDER SECTION 311 OF THE CODE OF CRIMINAL PROCEDURE.
THIS PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Heard Sri.Mohd. Usman Shaikh, learned counsel appearing for petitioner. Perused the records.
2. Respondent herein filed a private complaint under Section 200 Cr.P.C. alleging that petitioner herein has committed an offence punishable under Section 138 of Negotiable Instruments Act, 1881, namely cheque issued by petitioner for discharging the debt has been returned unpaid and thereby accused has committed an offence.
3. After evidence of accused came to be recorded, an application under Section 311 Cr.P.C. came to be filed by the complainant to lead further evidence namely, to examine additional witnesses. Said application has been allowed by order dated 28.08.2017. Being aggrieved by the same accused is before this Court.
4. It is the contention of Sri.Mohd. Usman Shaikh, learned counsel appearing for petitioner that trial Court erred in misreading the complaint as well as objections filed thereto and so also the evidence tendered by parties and thereby it has occasioned miscarriage in administration of justice and when there are no cogent reasons assigned by the complainant in the application seeking tendering of further evidence by examining additional witness, trial court ought not to have allowed said application. Hence, he seeks for quashing of the order under challenge.
5. As noticed hereinabove, complainant tendered his evidence and thereafter on being cross examined, statement of accused under Section 313 Cr.P.C. also came to be recorded. The evidence of accused came to be recorded on 22.02.2017 and certified copy of the deposition has been made available for perusal by this Court. In his examination-in-chief accused has stated:
“I have seen the accused xxxx April 2014. On 5.4.2014 I along with Revathi, my brother K.T. Ramachndra, my sister Vijayamma went to the house of the complainant. I and Smt.Revathi requested the complainant for loan of Rs.5,00,000/- jointly. The complainant and his wife agreed to arrange for a loan of Rs.5 lakhs on the basis of commission of at the rate of 5%. Complainant directed me to handover two blank cheques of me and Revathi along with one stamp papers and cheques of surety. On 7.4.2017 xxxxx Vijayamma went to the house of the complainant and handed over all the required documents to the wife of the complainant Smt. M.S.Kalavathi. Complainant assured me to make arrangements for the loan within 10 days. The accused xxxxx Rs.5 lakhs to me.”
So also is the evidence of two witnesses, who have been examined by the accused in support of his defence.
6. In the light of said evidence and taking into consideration Section 139 of the Negotiable Instruments Act, 1881, it would disclose that there is presumption in favour of the complainant about existence of debt and it came to be rebutted by the accused by tendering evidence and in view of plea of cheques having been raised by accused that complainant had assured to secure loan to accused and to substantiate said plea he had examined witnesses, complainant has sought for tendering further evidence to rebut said plea. As such, trial Court has rightly allowed the application filed by the respondent/complainant permitting examination of additional witnesses. No prejudice whatsoever would be caused to the petitioners, inasmuch as, he would have right to cross-examine witness, examined by the respondent/complainant.
In that view of the matter, this Court is of the considered view that there is no merit in this petition. Hence, writ petition stands dismissed.
SD/- JUDGE DR