Bangalore District Court
/ Sri. Ramakrishnaiah.R vs S/O. Ramaiah on 30 July, 2016
IN THE COURT OF THE LXI ADDL. CITY CIVIL AND
SESSIONS JUDGE, BENGALURU CITY (CCH-62)
Dated this the 30th day of July, 2016
PRESENT :- SRI.N.P.KOPARDE, B.A.,LL.B.(Spl.)
LXI Addl. City Civil & Sessions
Judge, Bengaluru City.
Criminal Appeal No. 333/2015
Appellant / Sri. Ramakrishnaiah.R,
Accused: S/o. Ramaiah,
Aged about 44 years,
R/at No.474, K.G.Layout,
Laggere Ring Road,
Bengaluru-560 058.
(By Sri.Anathapadmanabha G.N,Adv.)
- Vs -
Respondent / Jayashankar,
Complainant: S/o Puttaswamy Gowda,
Aged about 44 years,
R/at No.72/A, Hassan Iyengar's
Bakery,
16th Main, Tavarekere Road,
B.T.M. 1st Stage,
Bengaluru-560 029.
(By Sri. N.S., Adv.)
JUDGMENT
The appellant/complainant has preferred this appeal under Sec.372 of Cr.PC assailing the judgment of acquittal of 2 accused passed by the learned 19th ACMM, Bengaluru in C.C.No. 22326/2009 dated 31.12.2014.
2. For the sake of convenience, the parties are referred to as their ranks in the Court below.
3. The facts leading to the appeal are as under:
The complainant/respondent had filed a criminal complaint before the trial Court against the accused for the offence punishable under Sec.138 of the N.I.Act alleging that, the accused is his friend, who approached the complainant, in the month of January 2009 for hand loan of Rs.2,10,000/-. The complainant considering the request of accused advanced a loan of Rs.2,10,000/- in the month of January 2010. After requests and demands made by the complainant the accused issued cheques bearing No.092474 for Rs.50,000/-, cheque bearing No. 92475 for Rs.50,000/-, cheque bearing No.121900 for Rs.80,000/- and cheque bearing No. 121897 for Rs.30,000/- drawn on State Bank of India, S.S.I. Branch, Bengaluru. On presentation of the said cheques the said cheques were dishonoured with endorsement 'account closed' 3 on 18.7.2009. The complainant issued legal notice to the accused through RPAD and under Certificate of posting calling upon the accused to make payment of cheque amount. In spite of service of legal notice, the accused neither cleared the cheque amount nor replied the notice. Since the accused knowingly issued cheques to the complainant without having sufficient funds in his account and thereby the accused committed the offence u/s 138 N.I. Act.
4. After registration of the case, the Court below took cognizance of the offence under Sec.138 of the N.I.Act and issued summons to the accused. In response to the summons, the accused appeared through his counsel. The prosecution papers were furnished to the accused and plea of the accused was recorded. The accused pleaded not guilty and claimed for trial.
5. The complainant to prove her case, examined herself as PW.1 and got marked 14 documents as per Ex.P.1 to Ex.P.14. The statement of the accused under sec.313 of Cr.PC was recorded. The accused denied the incriminating evidence 4 appearing against him. The accused to rebut the case of the complainant examined himself as DW.1 and did not get marked any documents on his side and closed his evidence.
6. After hearing the arguments of both sides and perusing the materials placed on record, the Court below come to the conclusion that, the accused has not committed the offence under Sec.138 of the N.I.Act and consequently, acquitted the accused.
7. Being aggrieved by the impugned judgment, the appellant/complainant has preferred this appeal challenging the propriety and correctness of the order on the following grounds:
The Learned Magistrate has failed to see that the accused deposed in his evidence that he was not running Hassan Iyangar Bakery situated at B.T.M. Layout as it was closed him 2007 and now it was run by some other person. But as per the order sheet, in the year 2010, NBW was issued against accused and accused was arrested in the same 5 Hassan Iyangar Bakery. The Learned Magistrate has failed to see that the accused deposed in his evidence that the complainant stolen the above four cheques in the accused's shop. But it is not explained as to why the accused did not give any complaint to the police or bank officials with regard to the theft of the cheques. When the account is closed, the accused should have returned them to Bank. The Learned Magistrate has not given chance to recall DW.1 to cross- examine even after filing the application u/s 311 Cr.P.C. So, the complainant has been deprived the opportunity of cross- examine the accused. The Learned Magistrate has not given chance to the complainant to produce the loan account papers which are with the complainant. So the judgment passed by the court below is liable to be set aside. Accordingly, on the above said reasons, it is prayed to allow the appeal and to set aside the impugned judgment of acquittal of accused.
8. LCR called for and kept with this file. In response to the notice, the respondent/complainant appeared through his 6 counsel and it is argued on the part of the complainant that, the findings given by the Court below are just and proper and based on the sound principles of law and evidence. Under such circumstances, interference by this Court in the findings given by the Court below does not require. Hence, it is prayed to dismiss the appeal.
9. Heard both sides and perused the materials placed on record.
10. The points arise for my considerations are:
1. Whether the appeal preferred by the appellant is maintainable ?
2. What order ?
11. My findings on the above points are as under:
Point No.1 : In the negative, Point No.2 : As per the final order for the following:
REASONS
12. Point Nos.1:- Without touching the merits of the case, I would like to discuss whether the present appeal preferred 7 before this court is maintainable or not, under the proviso to section 372 Cr.P.C. In case of conviction an appeal would lie to court of Sessions u/s 374 (3) (a) Cr.P.C., thereafter a revision to High Court u/s 397/401 Cr.P.C. and finally a petition before the Hon'ble Supreme Court, seeking leave to appeal u/s 136 of the Constitution of India.
13. In case of acquittal by Magistrate Court, the complainant can prefer the appeal to Hon'ble High Court u/s 378(4) Cr.P.C. and thereafter for special legal to appeal to the Hon'ble Supreme Court, under Article 136.
The Hon'ble High Court of Karnataka in a decision in Crl. Petition No.6072/2014 dated 24.2.2015 in case of M/s Hill Range Power Project Developers and others Vs. M/s Acciona Wind Energy Pvt. Ltd., has held that a person presenting the complaint u/s 142 of N.I. Act cannot be termed as 'victim' defined u/s 2 (wa) of Cr.P.C. Therefore, the word "complainant " under Proviso to Section 142 of N.I. Act and 'the victim' u/s 2(wa) of Cr.P.C. are not one and the same. So the appeal filed under proviso to Section 372 8 Cr.P.C. before the Court of Session is not maintainable. So in view of the observation of the Hon'ble High Court of Karnataka, I am to say that the appeal preferred by the appellant before this Court is not maintainable. Accordingly, I answer Point No.1 in the 'negative' .
14. Point No.2: Having regard to my above observations and finding on point No.1 in the 'negative I proceed to pass the following:-
ORDER The Appeal preferred by the Appellant/complainant under Sec.372 of Cr.PC is hereby dismissed.
Send back the LCR with the copy of
this judgment to the Court below
forthwith.
(Typed to my dictation on computer to the Judgment Writer, corrected and then pronounced by me in the open Court on this the 30th day of July, 2016) (N. P. Koparde) LXI Addl. City Civil & Sessions Judge, Bengaluru City.
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