IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE G.NARENDAR BETWEEN SRI N RAJAGOPAL CRL.P.NO.1557/2019 S/O LATE NARAYANAPPA, AGED ABOUT 60 YEARS, R/AT NO.2, MURUGAN TEMPLE STREET, BESIDE DURGHA AUTOMOBILES, BEHIND BHOJAN GRUHA, NEW THIPPASANDRA, BANGALORE-560075.
(BY SRI P N NANJA REDDY, ADV.) AND SRI GANGADHARA GOTYAL S/O SHIVANANDA GOTYAL, AGED ABOUT 38 YEARS, R./AT NO.1026, NEW TOWN, BANGARPET-562113 ...PETITIONER …RESPONDENT THIS CRL.P IS FILED U/S.482 CR.P.C PRAYING TO QUASH THE IMPUGNED ORDER DATED 15.02.2019 PASSED ON THE MEMO IN C.C.NO.27273/2010 ON THE FILE OF VIII-ASCJ AND XXXIII A.C.M.M., MEMBER MACT, BANGALORE AS PER ANNEXURE-E AND THEREBY DIRECT THE LEARNED MAGISTRATE TO PERMIT THE PETITIONER TO CROSS EXAMINE PW.2 ON THE MISSED CHEQUE, AS PER THE DIRECTIONS OF THIS HON’BLE COURT IN THE ORDER DATED 16.01.2019 PASSED IN CRL.P.NO.3413/2014.
THIS CRL.P COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Heard the learned counsel for the petitioner.
2. Petitioner is before this court being aggrieved by the order dated 15.02.2019 whereby, the trial court has rejected the memo preferred by the petitioner-accused along with an application invoking the provisions of Section 311 of Cr.P.C for recalling PW-1 and to subject him to further cross examination in the light of the order passed by this court in Crl.P 3413/2014 dated 16.01.2019.
3. The case of the petitioner in the earlier round of litigation in Crl.P No.3413/2014 was that the trial court erred in passing an order dated 13.02.2014 directing reconstruction of the records, on account of the documents placed on record, having gone missing. This court after taking note of the order dated 13.02.2014 whereby the trial court has held that it intended to rely upon the evidence recorded by its predecessor in office in terms of Section 326 of Cr.P.C. rejected the contention of the instant petitioner that further proceedings could not be permitted in the absence of original cheques. The said contention also came to be rejected on the ground that on perusal of the records of proceedings available, the original cheques have been produced before the court along with the complaint and have been marked as exhibits in the course of examination-in-chief of PW-1 and later returned to the complainant.
4. This court after looking into all the aspects of the matter, deemed it fit to allow the trial court to conclude the proceedings after hearing the parties. This court also took note of the stage at which the proceedings were pending, that is at the stage of arguments when the earlier petition was moved before this court.
5. In the totality of the facts, this court was of the opinion that the onus is on the complainant to demonstrate his case with or without the primary evidence and the question as to whether the complainant can demonstrate his case without the primary evidence is a matter to be decided by the trial court after hearing the parties and deemed it appropriate to await the findings of the trial court on the disputed questions raised by the parties and then proceed further. This court did not find it necessary to adjudicate all contentions raised by the parties therein and was pleased to observe therein.
The portion of the order reads as under:-
“Hence, keeping open all the contentions urged by the respective parties, the petition is dismissed”.
The said observation is sought to be taken advantage of by the petitioner and has designed the instant memo and application under Section 311 of Cr.P.C with the apparent intention of protracting the proceedings. This court having taken note of the fact that the matter was pending at the stage of arguments has specifically observed that the question as to whether the complainant would be competent to demonstrate his case without the availability of the primary evidence is an issue to be considered by the trial court. The instant petition is nothing but an abuse of the process of the court. The petitioner apparently being encouraged by the success of the earlier round of litigation, has once again adopted litigation before this court as a measure to further delay the conclusion of the trial. The trial court while rejecting the application has clearly noted that the complaint is of the year 2010 and that the accused has also not let in any defence evidence and that he is willfully misinterpreting the orders as a dilatory tactics and in the totality of the circumstances has rightly concluded that the present application is nothing but an attempt to dragging the proceedings and has rejected the application by imposing cost of Rs.500/-.
6. In the considered opinion of this court, the petitioner having suffered the earlier order dated 16.01.2019 it was not open to him for re-agitating the same issue in a different manner and in the opinion of this court, the instant application is nothing but a dilatory tactics adopted by the petitioner to delay the inevitable. Accordingly, the petition stands dismissed.
7. In view of disposal of the petition, I.A. 1/2019 for stay does not survive for consideration and is accordingly disposed off.
Sd/- JUDGE Chs* CT-HR