Karnataka High Court
Timmesh Kumar S H vs Mahantesh Rayanagouda Patil on 28 June, 2022
Author: V.Srishananda
Bench: V.Srishananda
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CRL.P No. 101353 of 2022
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 28TH DAY OF JUNE, 2022
BEFORE
THE HON'BLE MR JUSTICE V.SRISHANANDA
CRIMINAL PETITION NO. 101353 OF 2022 (482)
BETWEEN:
TIMMESH KUMAR S.H.,
AGE. 43 YEARS, OCC. PROJECT MANAGER,
R/O. PLOT NO. 51, MADINI COLONY, SY.NO.102,
(KRISHNAPUR V GRAMA), PADMARAJ NAGAR,
HUBBALLI-580030, DIST. DHARWAD,
OFFICE ADRESS: HAVERI DISTRICT NIRMITI
KENDRA, THE D.C. OFFICE DEVAGIRI, HAVERI,
DIST. HAVERI.
...PETITIONER
(BY SRI. MRUTYUNJAYA S.HALLIKERI, ADVOCATE)
AND:
MAHANTESH RAYANAGOUDA PATIL,
AGE. 47 YEARS, OCC. BUSINESS,
Digitally R/O 196, 5TH CROSS RANI CHENNAMMA NAGAR,
signed by
ANNAPURNA DHARWAD - 580001. PRESENTLY RESIDING AT #
CHINNAPPA 157, RANI CHENNAMMA NAGAR, DHARWAD.
DANDAGAL
Location:
HIGH ...RESPONDENT
COURT OF
KARNATAKA (BY SRI. SHRIHARSH A.NEELOPANT, ADVOCATE)
DHARWAD
THIS CRIMINAL PETITION IS FILED U/S 482 OF CR.P.C.,
SEEKING TO SET ASIDE THE ORDER DATED 27.12.2021
PASSED IN CC NO.1136/2018 BY THE COURT OF PRINCIPAL
CIVI JUDGE AND PRINCIPAL JMFC, DHARWAD AND REJECT THE
WITNESS LIST DATED 24.12.2019 FILED IN CC NO.1136/2018
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CRL.P No. 101353 of 2022
ON THE FILE OF THE COURT OF PRINCIPAL CIVIL JUDGE AND
PRINCIPAL JMFC, DHARWAD.
THIS PETITION COMING ON FOR ADMISSION THIS DAY,
THE COURT MADE THE FOLLOWING.
ORDER
Heard the learned counsel for the parties and perused the records on admission.
2. The present petition is filed under Section 482 of Cr.P.C with the following prayer :-
"To set aside the order dated 27.12.2021 passed in C.C.No.1136/2018 by the Court of Principal Civil Judge and Principal JMFC, Dharwad and reject the witness list dated 24.12.2019 filed in C.C.No.1136/2018 on the file of the Court of Principal Civil Judge and Principal JMFC, Dharwad."
3. The brief facts of the case are as under :-
Petitioner is the accused in C.C.No.1136/2018 on the file of the Principal Civil Judge and Judicial Magistrate First Class, Dharwad for the offence punishable under Section 138 of the Negotiable Instruments Act. When the trial was pending, the -3- CRL.P No. 101353 of 2022 trial Court for the reasons best known to it, did not follow the dictum of the Hon'ble Apex Court in the case of Indian Bank Association and others V/s Union of India and others reported in (2014)5 SCC 590 calling for the defence to commence the trial. Such a procedure is incorrect in view of the directions issued by the Hon'ble Apex Court.
Nevertheless, the complainant was examined and he has been cross-examined at length that too after taking permission from the Court by filing application under Section 311 Cr.P.C. On completion of the examination and cross-examination of PW1, complainant, a witness list came to be filed by the complainant stating that he wants to examine one Ramesh as additional witness on his behalf. The same was objected to by filing written objection. The learned trial Magistrate by order dated 27.12.2021 allowed the witness list and posted the matter for further evidence of the complainant. The said order is under challenge on the following grounds.-4- CRL.P No. 101353 of 2022
• That, the Hon'ble Trial Court has adopted casual approach in accepting the witness list filed by the complainant after taking cognizance, issuance of summons, and complaint examination i.e in the middle of trial. The same is illegal and erroneous being contrary to Section 204 R/w 311 of Cr. P. C. • The trial court without appreciating the rights of the accused and the prejudice that would be caused to the accused by allowing additional witness in the middle of the trial has allowed the list of witness. The same is erroneous. The entire purpose of Section 204 (2) is rendered frivolous by causally summoning additional witness in the middle of the trial. The order of the trial court is contrary to the scope and purpose of Section 204(2) of Cr.P.C.
Section 204 of Cr. P. C mandates that, No summons or warrant shall be issued against the accused under sub section I until a list of the prosecution witness has been filed." This Hon'ble Court in case of Fakirappa Vs. Shiddatingappa -5- CRL.P No. 101353 of 2022 and Anr. reported in 2002 ILR (Kar) 181, while analyzing the nature of Section 204 (2) of Cr. P. C noted that, there is purpose insisting, under Sub-Section 2 of Section 204 of Cr.P.C. on the list of prosecution witness being filed before the summons or warrant is issued against the accused under Sub Section (1) thereof. By then, the learned magistrate would have already found sufficient ground to proceed against the accused. When the accused therefore appears before the learned magistrate in due compliance with the summons or on being produced in execution of warrant, not only that her should know what the case against him is, but also as to who are the witness to be examined in support of the case of prosecution Otherwise, field will be wide open for the prosecution to bring in any witness at any time, not only to improve its case from time to time, but, also to nullify the admissions given in the cross examination of the prosecution witness.". The copy of the judgment in Fakirappa Vs. Shiddalingappa and Anr.
-6- CRL.P No. 101353 of 2022herewith produced and marked as ANNEXURE-E. • That, under exceptional circumstances, the court has power under section 311 of Cr. P. C to summon additional witness. It is to be marked that, the solemn power of court under Section 311 is exceptional power but not casual or ordinary power. Unless the extraordinary case is made out for exercising power under Section 311, the would be erroneously exercising its power, by summoning witness. In the case on hand, except a list of witness where under name of one witness is cited no other explanation is forthcoming as to comply the mandatory conditions of Section 311. However, the trial court, without proper application of mind to the statutory mandate has permitted to summon the witness. The same has sever prejudice to the interest of the accused petitioner. Hence, the order is liable to be set aside.
• That, the complainant has filed witness list only to improve his case. The same -7- CRL.P No. 101353 of 2022 is not permitted under the criminal jurisprudence. Except by way of procedure established by law, the rights and interest of the accused is permitted to be prejudiced. Any this contrary would amount to unfair trial.
• That, the Hon'ble Apex Court in case of Rajaram Prasad Yadav Vs. State of Bihar reported in (2013) 14 SCC 461 has laid down principles to be born in mind while dealing with an application under section 311 of Cr. P. C. In the present case, the trial court has not at all considered any of the principles laid down by the apex court while allowing the witness list. Hence, the order suffers from perversity. The copy of the judgment Rajaram Prasad Yadav Vs. State of Biharis herewith produced and marked as ANNEXURE-F. • That, infact, there is no application filed under Section 311 of Cr. P. C. The exercise of jurisdiction of court in allowing the witness list and permitted complainant to examine the additional -8- CRL.P No. 101353 of 2022 witness is illegal and unsustainable in the eye of law.
4. Reiterating the grounds urged in the petition, learned counsel for the petitioner vehemently contended that the trial Court has committed a grave error in accepting the witness list alone in the absence of any application filed under Section 311 Cr.P.C. and sought for allowing the petition.
5. Per contra, learned counsel for the respondent vehemently contended that since the case of the complainant was not closed, he was entitled to examine the witness of the complainant further and therefore, impugned order is perfectly justified.
6. In the light of the rival contentions, this Court perused the material evidence on record meticulously. Admittedly, the trial Magistrate has not followed the procedure contemplated as per the direction of the Hon'ble Apex Court in the case of -9- CRL.P No. 101353 of 2022 Indian Bank Association (supra). In the said case, the Hon'ble Apex Court way back in the year 2014 itself has issued following directions and for ready reference the directions are culled out hereunder:
"DIRECTIONS:
1) The Metropolitan Magistrate/Judicial Magistrate (MM/JM), on the day when the complaint under Section 138 of the Act is presented, shall scrutinise the complaint and, if the complaint is accompanied by the affidavit, and the affidavit and the documents, if any, are found to be in order, take cognizance and direct issuance of summons.
2) The MM/JM should adopt a pragmatic and realistic approach while issuing summons. Summons must be properly addressed and sent by post as well as by e-mail address got from the complainant. The court, in appropriate cases, may take the assistance of the police or the nearby court to serve notice to the accused. For notice of appearance, a short date be fixed. If the summons is received back unserved, immediate follow-up action be taken.
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CRL.P No. 101353 of 20223) The court may indicate in the summon that if the accused makes an application for compounding of offences at the first hearing of the case and, if such an application is made, the court may pass appropriate orders at the earliest.
4) The court should direct the accused, when he appears to furnish a bail bond, to ensure his appearance during trial and ask him to take notice under Section 251 CrPC to enable him to enter his plea of defence and fix the case for defence evidence, unless an application is made by the accused under Section 145(2) for recalling a witness for cross-examination.
(5) The Court concerned must ensure that examination-in-chief, cross-examination and re- examination of the complainant must be conducted within three months of assigning the case. The Court has option of accepting affidavits of the witnesses instead of examining them in court. The witnesses to the complaint and accused must be available for cross-examination as and when there is direction to this effect by the court.
7. Despite the same, the learned Magistrate had commenced the case by examining the complainant. The order sheet produced with the case
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CRL.P No. 101353 of 2022also shows that the case was posted for recording the sworn statement. As per the direction of the Hon'ble Apex Court in the case of Indian Bank Association (supra), the complaint filed under Section 200 Cr.P.C. alleging the offence under Section 138 of the Negotiable Instrument Act, recording of the sworn statement was unnecessary.
However, the complainant has not brought this aspect of the matter to the learned Magistrate.
8. Under such circumstances, without following the procedure as contemplated under the Indian Bank Association case got proceeded.
Nevertheless, the complainant is examined and order sheet shows that examination of the accused was also closed. Thereafter, the accused has filed an application under Section 311 Cr.P.C. and witness was recalled and thereafter, complainant has been cross-examined in full. When such is the benefit that the accused has obtained, objecting to the order passed by the learned trial Magistrate dated
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CRL.P No. 101353 of 202227.12.2021 allowing the complainant to examine one more witness cannot be countenanced that too when no prejudice has caused to the accused by allowing the additional witness to be examined on behalf of the complainant. Therefore, the grounds urged in the petition are not sufficient to interfere with the order passed by the learned trial Magistrate by allowing the petition. Hence, this court pass the following:-
ORDER
(i) The petition is dismissed.
(ii) However, it is hereby directed
that the learned trial Magistrate
henceforth shall strictly follow the
directions issued by the Hon'ble Apex
Court in the case of Indian Bank
Association and others V/s Union of India and others reported in (2014)5 SCC 590.
SD/-
JUDGE CLK