IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF DECEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL REVISION PETITION NO.92 OF 2019 BETWEEN:
Sri.M.Nagaraj, S/o Madaiah, Aged about 45 years, No.50,11th Cross, Bhoviplaya, Nagapura, Bengaluru – 560086.
Also at The Bangalore Co-operative Society Bank, Head Office Branch, Np.03, Pampa Mahakavi Road, Chamrajpet, Bengaluru – 560018. ...Petitioner (By Sri. Dilraj Jude Rohit Sequeira, Advocate) AND:
Sri.C.R.Ramanna, S/o Late Rangappa, Aged about 63 years, R/o No-80/A, 1st Cross, Muneshwara Block, Palace Guttahalli, Bengaluru – 560003. ...Respondent (By Sri. K.Shridhara, Advocate) This Criminal Revision Petition is filed under Section 397 read with 401 of Cr.P.C. praying to set aside the judgment of conviction and sentence of fine and default sentence in Crl.A.No.656/2016 dated 09.08.2018 passed by the LXIII Additional City Civil and Sessions Judge, Bengaluru, confirming the judgment of conviction and sentence in C.C.No.3667/2015 by the Hon’ble XII Adl.C.M.M., Bengaluru dated 04.05.2016 and etc., This Criminal Revision Petition coming on for Orders, this day, the Court made the following:
ORDER This petition has been filed by the petitioner- accused challenging the judgment passed by LXIII Additional City Civil and Sessions Judge, Bengaluru in Cr.Appeal.No.656/2016 dated 9.8.2018.
2. I have heard the learned counsel for the respondent-complainant.
3. Though this case is listed on day to day basis, the petitioner and his counsel remained absent. Since the petition cannot be dismissed for default, the same is disposed on merits.
4. The facts of the case are that, the complainant and accused were acquainted with each other since ten years. Accused approached the complainant on 7.11.2013 and requested him for financial help of Rs.9,00,000/- for his financial commitments and he agreed to pay interest at 1.5%. After lapse of three months complainant demanded to repay the said borrowed loan and in discharge of said loan, accused issued a cheque bearing No. 442092 dated 15.12.2014 drawn on the Bangalore City Co- operative Bank Limited, Chamarajapet Branch, Bengaluru. When the said cheque was presented through his banker, the same was dishonored with shara “Account Closed” and the said fact was informed to the accused. He did not respond. The complainant issued legal notice on 29.12.2014 to the accused. The legal notice was duly served on 12.01.2015 and 13.01.2015. Despite service of notice, accused did not make payment and as such the complaint was filed.
5. The Learned Magistrate took the cognizance and secured the presence of the accused and after following the formalities, charge was framed and accused pleaded not guilty. He claims to be tried and as such trial was fixed.
6. The complainant got examined himself as PW-1 and has got 6 documents marked on his behalf. But the said witnesses have not been cross examined. He has not led any evidence. Since the cross examination was not done, the statement under Section 313 of Cr.P.C was dispensed with and case was posted for arguments. Thereafter, after hearing both the parties, the accused was convicted under Section 138 of Cr.P.C.
7. Being aggrieved by the same, accused preferred the appeal. The appellate court also confirmed the judgment of the trial Court.
8. The main grounds urged by the learned counsel for the petitioner are that, the learned Senior Judge has wrongly convicted the accused and convicting the petitioner is opposed to the law and facts of this case. It is further contended that the complaint has been lodged after due deliberations and manipulation. The evidence of PW1 is uncorroborated testimony and it is unworthy to accept the same. It is further submitted that, evidence of the complainant bristles with infirmities, contradictions and improvements. He further contended that evidence of complainant suffer from material infirmities. He has further contended that Court below brushed aside the mandatory provisions contemplated under Section 313 of Cr.P.C., and decided the case without giving any opportunity. On these grounds, he prays to allow the petition and to set aside the impugned order.
9. Per contra learned counsel for respondent- complainant vehemently argued and submitted that the relationship is not in dispute and complainant has proved that he has given Rupees Nine Lakhs and all the ingredients of Section 138 have been proved and he has dispensed in accordance with law. PW1 has not been cross examined and no defense has been stated unchallenged, evidence has been accepted by the Court below. Even by giving sufficient opportunity to the accused-petitioner, he has neither cross examined nor filed any application to recall the said witness nor has he put forth his defense. Taking into consideration the above facts, the trial Court has rightly convicted the accused and by going through the said evidence, the appellate court has also confirmed the judgment and order. There are no good grounds to interfere with the order of the trial Court. On these grounds, he prays to dismiss the petition.
10. I have carefully and cautiously gone through the lower court records. It is the specific contention that the accused and complainant were acquainted with each other since ten years and he has borrowed Rupees Nine Lakhs and he has issued cheque for repayment of the said amount. When it was presented, the same was dishonored with shara “funds Insufficient” and thereafter legal notice was issued and same has been served on the accused and he has not given any reply. All the ingredients of Section 138 have been proved by the complainant and the same has been reiterated in his evidence. For the reasons best known to the petitioner-accused, the complainant has not been cross- examined.
12. I have gone carefully through the order sheet of the trial Court, Complainant got examined on 14.07.2015 and there after for the purpose of cross- examination, the case was adjourned to 11.08.2015 and again it was adjourn to 15.09.2015, 6.10.2015, 30.10.2015, 21.11.2015, 17.12.2015, 16.01.2016, 3.2.2016, 17.2.2016 and 2.3.2016. But inspite of giving sufficient opportunity, the accused has not cross- examined the complainant. Thereafter, the statement of the accused was dispensed with and the case was posted for defence evidence on 21.3.2016, 11.4.2016 and 27.11.2016 and inspite of giving opportunity, he has not led any evidence. Thereafter, the case was posted for arguments and after hearing both the parties, the impugned judgment has been passed.
13. I have carefully and cautiously gone through the evidence and materials placed on record. When unchallenged evidence is there, then under such circumstances, the accused cannot contend that it is uncorroborated testimony of the complainant and it is unworthy to accept. When the complainant has not been cross-examined and in the said evidence it is justified and he has not been rebutted. Then under such circumstances, the same has to be acceptable and accused is liable to be acquitted. Whether the ingredient as contemplated under Section 138 of Cr.P.C. has been proved by the complainant or not has to be seen. By going through the records, all the ingredients which is required to take the cognizance and proceed with the matter have been complied and same is in accordance with law. Taking into consideration, the said factual matrix and as discussed above, the contention which has been taken up is not sustainable in law and same is liable to be rejected.
14. Learned counsel for the petitioner submits that the mandatory provisions contemplated under Section 313 of Cr.P.C., has not been followed and denied the golden right of the accused by not providing opportunity for substantiating his claim. As per Section 313 of Cr.P.C., only the incriminating material has to be put and accused has to explain the incriminating material when the entire evidence which has been in challenge then under such circumstances, the Court can dispense the recording of statement of Section 313 Cr.P.C., and on going through the records, sufficient opportunity has been given to the accused. There is no denial of the golden right of the accused but unfortunately the golden right which has been given has been waived and not utilized properly. Under such circumstances, the contention of the petitioner-accused does not sustain in law and even before this Court, neither the accused-petitioner nor his counsel is present, that itself shows that they are not interested in the matter. The only purpose for which the petition is filed appears to be to drag on the proceedings. Despite giving an opportunity, it is contended that no opportunity has been given and he should be given an opportunity, the said act of the accused reveals his adamant nature.
15. Taking into said facts and circumstances, I am of the considered opinion that petitioner-accused has not made out any good grounds to interfere with the judgment of the trial Court. Petition is devoid of merits and same is liable to be dismissed and accordingly it is dismissed.
Sd/- JUDGE ag