Karnataka High Court
Syed Nusrat Ali vs Mr. Sadat Ali on 13 February, 2020
Equivalent citations: AIRONLINE 2020 KAR 690
Author: K.Natarajan
Bench: K.Natarajan
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF FEBRUARY, 2020
BEFORE`
THE HON'BLE MR. JUSTICE K.NATARAJAN
CRIMINAL REVISION PETITION NO.1111 OF 2018
C/W
CRIMINAL REVISION PETITION NO.1112 OF 2018
IN CRL.R.P.No.1111/2018:
BETWEEN
SYED NUSRAT ALI
S/O LATE SYED MAHABOOB ALI,
AGED ABOUT 50 YEARS,
R/AT No.1-10-129,
KALLURU COLONY,
STATION ROAD,
RAICHUR-514 101.
... PETITIONER
(BY SRI Y.S.SHIVA PRASAD, ADV.)
AND
MR.SADAT ALI
S/O LATE KHURSHID ALI,
AGED ABOUT 54 YEARS,
RESIDING AT No.360/2,
7TH CROSS, LAKSHMI ROAD,
SHANTINAGAR,
BANGALORE-560 027.
... RESPONDENT
(BY SRI K.V.SHYAMA PRASAD, ADV.)
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397(1) READ WITH SECTION 401 OF THE CODE OF
CRIMINAL PROCEDURE, 1973, PRAYING TO SET ASIDE THE
JUDGMENT OF CONVICTION AND SENTENCE DATED 09.10.2015
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PASSED BY THE XV ADDITIONAL CHIEF METROPOLITAN
MAGISTRATE, BENGALURU CITY IN C.C.No.18734/2007 AND
FURTHER CONFIRMED BY THE APPELLATE COURT IN
CRL.A.No.1430/2015 DATED 17.07.2018 BY LXVIII ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE, BENGALURU CITY.
IN CRL.R.P.No.1112/2018:
BETWEEN
SYED NUSRAT ALI
S/O LATE SYED MAHABOOB ALI,
AGED ABOUT 50 YEARS,
R/AT No.1-10-129,
KALLURU COLONY,
STATION ROAD,
RAICHUR-514 101.
... PETITIONER
(BY SRI Y.S.SHIVA PRASAD, ADV.)
AND
MR.SADAT ALI
S/O LATE KHURSHID ALI,
AGED ABOUT 54 YEARS,
RESIDING AT No.360/2,
7TH CROSS, LAKSHMI ROAD,
SHANTINAGAR,
BANGALORE-560 027.
... RESPONDENT
(BY SRI K.V.SHYAMA PRASAD, ADV.)
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397(1) READ WITH SECTION 401 OF THE CODE OF
CRIMINAL PROCEDURE, 1973, PRAYING TO SET ASIDE THE
JUDGMENT OF CONVICTION AND SENTENCE DATED 09.10.2015
PASSED BY THE XV ADDITIONAL CHIEF METROPOLITAN
MAGISTRATE, BENGALURU CITY IN C.C.No.18735/2007 AND
FURTHER CONFIRMED BY THE APPELLATE COURT IN
CRL.A.No.1431/2015 DATED 17.07.2018 BY LXVIII ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE, BENGALURU CITY.
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THESE CRIMINAL REVISION PETITIONs COMING ON FOR
ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
This petition is filed by the petitioner-accused assailing the judgment of conviction and order of sentence passed by the XV Additional Chief Metropolitan Magistrate, Bengaluru (hereinafter referred to as 'trial Court') in C.C.Nos.18734/2007 and 18735/2007 vide order dated 09.10.2015 and the same was upheld by the LXVIII Additional City Civil and Sessions Judge, Bengaluru (hereinafter referred to as 'First Appellate Court') in Crl.A.Nos.1430/2015 and 1431/2015 dated 17.07.2018.
2. Heard the arguments of the learned counsel for the petitioner and respondent in both the cases.
3. Both the cases arise out of between the same parties, hence, taken together for avoiding repetition of facts and law.
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4. The rank of the parties before the trial Court is retained for the sake of convenience.
5. The case of the complainant before the trial Court is that the accused borrowed loan from the complainant for the purpose of establishing a new petrol bunk at Raichur Town in the name of his wife named Humera and in order to repay the same, he has issued two cheques bearing Nos.218508 and 218509 for Rs.10,00,000/- and Rs.30,00,000/- respectively. Both cheques were presented and the same was returned unpaid for the reasons "FUNDS INSUFFICIENT". The notice has been issued to the accused. The same was received by his wife, but failed to repay the amount. Hence, complainant filed two criminal cases against the accused for the offence punishable under Section 138 of Negotiable Instrument Act (for short 'N.I.Act). The trial Court took cognizance and issued notice to the accused. After the appearance of the accused, he was released on bail and plea was recorded. The accused pleaded not guilty and 5 claimed to be tried. Thereafter, the complainant to prove his case, got examined himself as PW.1 and got marked 7 documents and the accused remained absent and not chosen to cross-examine PW.1. After considering the material on record, trial Court judgment by convicting the accused and sentenced to pay fine as well as imprisonment. Assailing the same, the accused preferred the appeal before the First Appellate Court in Crl.A.Nos.1430/2015 and 1431/2015 and the First Appellate Court after hearing the arguments dismissed both the appeals. Hence, the accused is before this Court by way of revision petition.
6. Learned counsel appearing for the petitioner has strenuously contended that the trial Court has committed error in holding that the accused found guilty without giving proper opportunity and even not recorded the statement under Section 313 of Cr.P.C. due to his absence of the accused which is not correct. Even the First Appellate Court has also not considered the case on merit 6 and enlarged on bail. Huge amount involved in both the cases. The trial Court ought to have given proper opportunity to lead the evidence. But the same was not accorded. Therefore, learned counsel prays for allowing the petition and setting aside the judgment of both the Courts below and to remand the matter back for extending the opportunity for the accused to cross-examine PW.1 and contest the accused.
7. Per contra, learned counsel appearing for the respondent has supported the judgment of both the Courts below and contended that the accused has been appeared before the Court and previously taken the contention that the notice has been served on the accused by filing the revision petition. The revision petition came to be dismissed. Thereafter, he has appeared before the trial Court and after recording the evidence of the complainant, he has not chosen to cross-examine in order to the liberty given to the accused but not utilized the same. The trial Court has rightly given the findings by convicting the 7 accused. There is no error and illegality committed by the trial Court as well as the First Appellate Court for setting aside the judgment. Hence, prayed for dismissing the same.
8. Upon hearing the arguments and on perusal of the records, it would goes to show that the complainant has filed two criminal cases against the accused in C.C.Nos.18734/2007 and 18735/2007. The accused taken contention that no notice has been served on him. However, the notice is served on the wife of the accused and thereafter, the accused has also filed criminal revision petition Nos.547/2007 and 548/2007, which came to be dismissed for non-prosecution. Admittedly, the accused obtained the bail before the trial Court and plea was recorded. Thereafter, when the matter was posted for the evidence of the complainant, the accused failed to appear before the Court and complainant adduced the evidence on the accused and his counsel failed to appear and not chosen to cross-examine the complainant and also not led 8 any evidence. Therefore, the trial Court closed the case and passed the impugned judgment. However, the findings of the trial Court at inner page No.2 of its judgment , the trial Court stated that after recording the evidence of the complainant, the accused was examined under Section 313 of Cr.P.C and accused denied the evidence and heard the arguments on both the sides, infact, it is not correct. Since, the accused has not at all cross-examined PW.1 and 313 statement was not recorded by the trial Court after conclusion of the evidence of the complainant and also not heard the arguments of the learned counsel for the accused. However, the trial Court given finding and convicted the accused. The First Appellate Court while considering the same relied upon the judgment of the Hon'ble Supreme Court in the case of Indian Bank Association and Others vs. Union of India and others reported in 2014 AIR SCW 3462, the Hon'ble Supreme Court has given the guidelines to conduct the Summary proceedings as required under Sections 262 to 265 of Cr.P.C. and there is no strict requirement for 9 recording the statement of the accused under Section 313 of Cr.P.C. in the Summary proceedings.
9. However, the trial Court record goes to show that the accused has not cross-examined PW.1 even though he was appeared before the Court and released on bail and subsequently, he was absconded. Again, he was released on bail by recalling NBW and thereafter the accused was posted for the evidence. Even on perusal of this criminal revision petition, the petitioner remained absent and the revision petition came to be dismissed for non-prosecution which shows that the accused-petitioner was remaining absent to the Court and not contested the matter even though liberty was given to him. Be as it may be, the amount by the cheques were involved is Rs.40,00,000/-. The accused is said to be a Government employee and borrowed money for a sum of Rs.40,00,000/- to establish a Petrol Bunk at Raichur in the name of his wife Smt. Humera. A huge money is involved in this case. An opportunity is required to be given to 10 decide the matter on merits. Therefore, in my view, one more opportunity is given to the accused to contest the case before the trial Court without expressing any opinion on merits. The judgment of both the Courts below are required to be set aside. Accordingly, I pass following order:
Both criminal revision petitions are allowed with the cost of Rs.10,000/- (Rs.5,000/- each) to the respondent.
The judgment of conviction and order of sentence passed by the XV Additional Chief Metropolitan Magistrate, Bengaluru in C.C.Nos.18734/2007 and 18735/2007 vide order dated 09.10.2015 and upheld by the LXVIII Additional City Civil and Sessions Judge, Bengaluru in Crl.A.Nos.1430/2015 and 1431/2015 dated 17.07.2018 are hereby set aside.
The matter is remitted back to the trial Court for fresh consideration by extending opportunity to cross- examine the witnesses and also permitted the complainant to lead any further evidence and thereafter, giving 11 opportunity to the accused and dispose the matter within six months from the date of appearance of the parties.
Parties shall appear before the trial Court on 09.03.2020 at 11 A.M. without expecting any further notice.
Sd/-
JUDGE GBB