IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF FEBRUARY 2017 BEFORE THE HON’BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.1161 OF 2017 BETWEEN:
1. M/S. VINTEL SYSTEMS PVT. LTD., NO.24, 2ND FLOOR, S.N.S. CHAMBERS, 239, SANKEY ROAD, SADASHIVANAGAR, BENGALURU-560 080, BY ITS DIRECTOR, V.VENU.
2. V. VENU DIRECTOR, M/S. VINTEL SYSTEMS PVT. LTD., NO.24, 2ND FLOOR, S.N.S. CHAMBERS, 239, SANKEY ROAD, SADASHIVANAGAR, BENGALURU-560 080. ... PETITIONERS (By Sri: PRABHUGOUD B TUMBIGI, ADVOCATE) AND M/S. RAJESH EXPORTS LTD., COMPANY INCORPORATED UNDER COMPANIES ACT AND HAVING ITS OFFICE AT NO.4, BATAVIA CHAMBERS, KUMARA KRUPA ROAD, KUMARA PARK EAST, BENGALURU-560 001, REP BY ITS AUTHORIZED REPRESENTATIVE R.M. NANJUNDASWAMY. ... RESPONDENT (By Sri: P RAJU, ADVOCATE) ---
THIS CRL.P IS FILED U/S.482 CR.P.C PRAYING TO QUASH THE ORDER DATED 13-1-2017, REJECTING THE APPLICATION FOR RECALL OF PW1 UNDER SECTION 311 OF THE CODE OF CRIMINAL PROCEDURE IN C.C.NO.48044/2010 (PCR NO.34609/2010) PENDING ON THE FILE OF THE XXV ADDITIONAL CHIEF METROPOLITAN MAGISTRATE, BENGALURU FOR THE OFFENCE PUNISHABLE UNDER SECTION 138 OF THE NEGOTIABLE INSTRUMENTS ACT AND CONSEQUENTLY ALLOW THE APPLICATION FILED BY THE PETITIONERS UNDER SECTION 311 OF THE CODE OF CRIMINAL PROCEDURE FILED THEREIN.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R This petition is filed seeking to quash the order dated 13.1.2017 rejecting the application for recall of PW.1 filed by the petitioners herein under section 311 of Cr.P.C.
2. The proceedings against the petitioners herein were initiated in 2010. The learned Magistrate appears to have taken cognizance of the offence and after issuance of summons, recorded the plea of the respondent and commenced the evidence. It is not in dispute that PW.1 adduced his chief examination in 2012. Thereafter, the matter appears to have been adjourned from time to time in view of the proposal made by the parties to settle the disputes amicably. It is also borne on record that the parties were also referred to mediation. The mediation having failed, once again the matter was taken up for cross-examination of PW.1 on 22.12.2016. On that day, the accused/petitioners being absent, the Trial Court closed the evidence of PW.1 and on the same day, the Trial Court has dispensed with the examination of the accused/petitioners under section 313 of Cr.P.C., and has posted the matter for arguments.
3. No doubt there is inordinate delay in completing the cross-examination of PW.1, but in view of the facts stated above, the said delay cannot be attributed solely to the petitioners. The Trial Court itself had conceded to the request of both the parties and had referred the parties for mediation. Under the said circumstances, the matter having been taken up for cross- examination of PW.1, on the failure of mediation, in all fairness, the Trial Court ought to have given an opportunity to the petitioners/accused to cross-examine PW.1. That apart, order-
sheet does not reflect the reason for dispensing with the examination of the accused/petitioners under section 313 Cr.P.C.
4. For both these reasons, the proceedings dated 22.12.2016 cannot be sustained and for the same reason, the consequent order passed by the court on 13.1.2017, rejecting the application moved by the petitioners under section 311 of Cr.P.C., also cannot be sustained. Hence, the following order:-
The petition is allowed. The impugned order dated 13.1.2017 in so far as rejecting the application filed by the petitioners under section 311 of Cr.P.C. is set-aside. On the next date of hearing, PW.1 shall tender himself for cross- examination and on the same day, the petitioners shall cross- examine PW.1 without seeking any adjournment. The Trial Court thereafter shall proceed in accordance with law.
Sd/- JUDGE Bss.