Sri. Anil G.N. vs Dr. S. Radhesh on 8 February, 2017

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Karnataka High Court

Sri. Anil G.N. vs Dr. S. Radhesh on 8 February, 2017

Bench: John Michael Cunha

                                  1


     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 8th DAY OF FEBRUARY 2017

                             BEFORE

     THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA

            CRIMINAL PETITION NO.1180 OF 2017
BETWEEN:

1.    Sri. Anil G.N.
      S/o G.S. Nagarajan,
      Aged about 43 years,
      R/at No. 413, 'A' Block, 4th Floor,
      Komarla Brigade Residency,
      Uttarahalli Main Road,
      Bengaluru - 560061.

2.    Vedaas Solutions
      G-4, Nisarga Dhama,
      Jayalaksmi Vilas Road,
      New Law Courts & Aitlines Hotel,
      Chamarajapuram, Mysore - 570005.
      Represented by its Managing Partner
      Mr. Anil G.N. Aged about 43 years,    ..... Petitioners

(By Sri: Nanda Kishore, Advocate)


AND

Dr. S. Radhesh,
S/o K. Srinivasan,
Aged about 50 years,
R/at No. 137, LIG,
                                    2

7th Main, KHB Colony, 2nd stage,
Basaveshwar Nagar,
Bengaluru - 560079.                             ..... Respondent

(By Sri: Pruthvi Wodeyar, Advocate)
                              -------

     THIS CRIMINAL PETITION IS FILED U/S.482 CR.P.C.
PRAYING TO SET ASIDE THE ORDER DATED 18.01.2017 PASSED
BY XXII ADDITIONAL CHIEF METROPOLITAN MAGISTRATE,
BENGALURU IN C.C.NO.12264/2016.

     THIS CRIMINAL PETITION COMING ON FOR ADMISSION
THIS DAY, THE COURT MADE THE FOLLOWING:-
                            ORDER

Sri. Pruthvi Wodeyar, learned counsel takes notice on behalf of the respondent.

Heard the learned counsel for the petitioners and the learned counsel for the respondent.

With consent, this matter is taken up for final disposal.

2. The only grievance raised by the petitioners is that they are prosecuted at the instance of the respondent for the commission of offence under section 138 of the Negotiable Instruments Act, 1881. Even though the Trial Court was 3 generous in giving time to adduce evidence of the petitioner No.1 /accused No.1, yet, due to unavoidable circumstances, petitioner No.1 /accused No.1 could not tender himself for cross-examination and the Trial Court has chosen to his eschew his evidence from the records.

3. It is the submission of the learned counsel that the petitioner No.1 /accused No.1 has important defence to be raised in the case and under the said circumstances, if the opportunity is denied to the petitioner No.1 /accused No.1 to substantiate his defence, he would be subjected to irreparable injury and his life and as well as his family will be ruined on account of the likely liability that would be saddled on him.

4. Learned counsel for the respondent/complainant has seriously opposed the application and has brought to the notice of the court the indulgence shown by the court. The learned counsel pointed out that on two occasions, the Trial Court has allowed the application moved by the petitioner No.1 4 /accused No.1 and even after imposition of costs, the petitioner No.1 /accused No.1 has not paid the costs, which itself indicates that the attempt of the petitioner No.1 /accused No.1 is only for prolonging the matter and avoid the liability arising on account of issuance of the cheques.

5. Having heard the learned counsel for the parties and on going through the impugned order, I find that the Trial Court was justified in rejecting the application. The order sheet reveals that the Trial Court allowed the application filed by the petitioner No.1 /accused No.1 under section 311 of Cr.P.C on imposition of costs. Inspite of it, the petitioner No.1 /accused No.1 has not chosen to adduce the evidence.

6. However, having regard to the fact that the petitioner No.1/accused No.1 has chosen to adduce evidence putting forth his defence, I am of the view that an opportunity has to be given to the accused to lead evidence, lest he would go with the feeling that he has been denied an opportunity to substantiate his case.

7. The learned counsel submits that if an opportunity is given, the petitioner No.1/accused No.1 will tender himself for the cross-examination on the date fixed by the court and he would also keep his witnesses present without seeking any summons to those witnesses and complete his evidence without seeking any further adjournment.

8. Recording the said submission, I deem it proper to pass the following order:-

Criminal petition is allowed. The petitioner/accused No.1 is permitted to adduce his evidence and also examine his witnesses on the condition that accused No.1 shall lead his evidence and also keep his witnesses present for examination on the date fixed by the court without seeking any summons to the witnesses and without seeking any further adjournment. The parties are directed to appear before the court on 14/02/2017 and take a convenient date for examination of the accused and his witnesses.

In order to compensate the respondent for driving him to this stage, the petitioner No.1/accused No.1 shall pay the cost of Rs.5,000/- (Five thousand rupees only) to the respondent on 14/02/2017 before the Trial Court.

Petition stands allowed accordingly.

Sd/-

JUDGE *mn/sb

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