Karnataka High Court
L Ramesh vs K Anand on 20 June, 2024
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
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NC: 2024:KHC:22269
CRL.P No. 11140 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CRIMINAL PETITION NO. 11140 OF 2023
BETWEEN:
1. L.RAMESH
S/O SREENIVASULU NAIDU
AGED ABOUT 51 YEARS
R/AT GURAPPANAIDU KANDRIGA VILLAGE
THOTTAMBEDU MANDAL
SRIKALASHASTI TALUK
CHITOOR DISTRICT
ANDHRA PRADESH - 517 640.
2. L.MURALI
S/O SREENIVASULU NAIDU
AGED ABOUT 53 YEARS
R/AT GURAPPANAIDU KANDRIGA VILLAGE
THOTTAMBEDU MANDAL
Digitally signed SRIKALASHASTI TALUK
by NAGAVENI
Location: HIGH
CHITOOR DISTRICT
COURT OF ANDHRA PRADESH - 517 640.
KARNATAKA
...PETITIONERS
(BY SRI. SOMASHEKAR NAIDU B., ADVOCATE)
AND:
K.ANAND
S/O SREENIVASULU
AGED ABOUT 62 YEARS
R/AT NO.4, 2ND FLOOR, I.T.I.LAYOUT
VIDYAPEETA COMPOUND
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NC: 2024:KHC:22269
CRL.P No. 11140 of 2023
KATRIGUPEE MAIN ROAD
NEAR TENDER CHICKEN
BSK 3RD STAGE
BENGALURU - 560 085.
...RESPONDENT
(BY SRI. V.LAKSHMAIAH, ADVOCATE)
THIS CRL.P IS FILED U/S 482 OF THE CR.P.C., PRAYING
TO SET ASIDE THE IMPUGNED ORDER DATED 01.09.2023
PASSED IN C.C.NO.3014 OF 2018, ON THE FILE OF XII ADDL.
JUDGE METROPOLITAN MAGISTRATE AND COURTS OF SMALL
CAUSES, BENGALURU.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
Petitioners are before this Court calling in question an order dated 01-09-2023 passed in C.C.No.3014 of 2018, registered for offence punishable under Section 138 of the Negotiable Instruments Act.
2. Heard Sri Somashekar Naidu B, learned counsel appearing for petitioners and Sri V Lakshmaiah, learned counsel appearing for respondent.
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NC: 2024:KHC:22269 CRL.P No. 11140 of 2023
3. Petitioners are accused Nos.1 and 2; the respondent complainant. Petitioners and the respondent had certain transaction, due to which, the petitioners have issued certain cheques. The cheques having been dishonoured, leads the complainant to the concerned Court invoking Section 200 of the Cr.P.C. During the pendency of the proceedings, an application is filed by the respondent/complainant under Section 311 of the Cr.P.C. seeking to recall P.W.1 and mark certain document, which is a promissory note. The said application comes to be allowed which has led the petitioners/accused to this Court in the subject petition.
4. Learned counsel for the petitioner submits that the promissory note that the complainant seeks to mark in terms of the impugned order were never a part of the record. There was no whisper about it in the complaint nor in the notice that was issued earlier and therefore, it is a new document that is now sought to be brought into the proceedings, to get over the case made out during the cross-examination of the complainant by the accused. He would submit that the order, if permitted, -4- NC: 2024:KHC:22269 CRL.P No. 11140 of 2023 would amount to introduction of a new document which was not the case of the complainant even in the complaint.
5. Per-contra, learned counsel appearing for the respondent/complainant would take this Court through the statement of objections so filed to contend that the plea of promissory note is not put up for the first time by the complainant. In the notice caused upon accused No.1 on 11-10-2017 itself the execution of the promissory note was made known to them and it is executed by the accused No.1 himself, and therefore, he cannot wriggle out of it. He would submit that all these matters would be a matter of evidence and continuance of trial. Since there is an interim order of stay operating, the trial has not progressed any further.
6. I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the material on record.
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NC: 2024:KHC:22269 CRL.P No. 11140 of 2023
7. The afore narrated facts are not in dispute. The issue lies in a narrow compass, as to whether the order dated 01-09-2023 suffers from any legal infirmity?
8. The transaction between the two is not in dispute. The proceedings taken up by the respondent/complainant in accordance with law is again not in dispute. The only issue now is, whether the plea of execution of a promissory note by the 1st petitioner-accused No.1 in favour of the complainant is a plea that was taken at the earliest point in time or for the first time in an application filed under Section 311 of the Cr.P.C.
9. It becomes germane to notice the legal notice caused upon the petitioner-accused which reads as follows:
".... .... ....
Under instructions from my client Sri Kalavakolu Ananda Naidu, son of late Sreenivasulu Naidu, residing at D.No.4, Vidyapeeta Compound, BSK 3rd Stage, ITI Layout, Bangalore City, Karnataka State, I do hereby give you the following notice:-
1. My client states that on 23.05.2016 you have borrowed Rs.14,00,000-00 (Rupees Fourteen lakhs only) from my client for your family necessities and in consideration thereof, you have executed a promissory note on the same day in favour of my client undertaking to repay the said debt together with interest at 24% per annum whenever demanded by client or to her order."-6-
NC: 2024:KHC:22269 CRL.P No. 11140 of 2023 The receipt of the notice is not in dispute. The plea in the notice is execution of a promissory notice. If the promissory note was the foundation on which the notice was issued at the outset, the complainant wants to bring in the said document through the application. No fault can be found with the order passed by the concerned Court on 01-09-2023, allowing the said application to bring in the said promissory note, as it is a settled principle of law that, mere marking of a document would not amount to its proof. Even after marking the document, the complainant has a task of proving the same, which the Court would regulate on further proceedings being permitted.
10. In the light of no fault being found with the order passed by the concerned Court dated 01-09-2023, the petition stands rejected, directing the concerned Court to continue the proceedings by regulating its procedure.
Sd/-
JUDGE BKP List No.: 1 Sl No.: 61/ CT:SS