Karnataka High Court
Sri Dharmichand Jain vs Sri Zabee on 20 December, 2023
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NC: 2023:KHC:46525
CRL.A No. 780 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE G BASAVARAJA
CRIMINAL APPEAL NO. 780 OF 2015
BETWEEN:
SRI DHARMICHAND JAIN
S/O SRI NEMICHAND JAIN
AGED ABOUT 55 YEARS
R/AT NO.2, II MAIN ROAD
SHESHADRIPURAM
BENGALURU-560020
...APPELLANT
(BY SRI. SATEESH B.,ADVOCATE)
AND:
SRI ZABEE
S/O LATE AHAMED
AGED ABOUT 48 YEARS
RESIDING AT M/S CAR LIFE
NO.6, THIMMAIAH ROAD
Digitally signed BENGALURU-560001
by SANDHYA S ...RESPONDENT
Location: High (BY SRI. .,ADVOCATE)
Court of
Karnataka
THIS CRL.A. FILED U/S 378(4) CR.P.C BY THE ADV. FOR
THE APPELLANT PRAYING THAT THIS HON'BLE COURT MAY BE
PLEASED TO SET ASIDE THE ORDER DATED 06.06.2015
PASSED BY THE 15TH A.C.M.M., BANGALORE IN
C.C.NO.15433/2014 - ACQUITTING THE
RESPONDENT/ACCUSED FOR THE OFFENCE PUNISHABLE
UNDER SECTION 138 OF N.I. ACT.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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NC: 2023:KHC:46525
CRL.A No. 780 of 2015
JUDGMENT
The appellant/complainant has preferred this appeal against the judgment of acquittal passed by the XV Addl. Chief Metropolitan Magistrate, Bangalore City in C.C.No.15433/2014 dated 06.06.2015.
2. The rank of the parties in this appeal are referred in the same rank as referred by the trial Court.
3. The case of the complainant is that:
The complainant and accused were friends and known to each other. Accused had approached the complainant for a hand loan of Rs.2,50,000/- and assured to repay the said amount within 12 months. Accordingly, a sum of Rs.2,50,000/- was paid to the accused in the month October 2012. As a security to the said loan, accused had handed over original documents pertaining to the vehicle bearing No.KA-04-Z-7299. He had also agreed to repay the loan amount with interest at 18% p.a. After three months, complainant approached the accused demanding repayment of the loan amount. But on one -3- NC: 2023:KHC:46525 CRL.A No. 780 of 2015 pretext or the other, accused postponed the payment and finally issued two cheques for a sum of Rs.1,50,000/- and Rs.1,00,000/- on 01.03.2013 and 04.03.2013 respectively drawn on Allahabad Bank, Taskar Town Branch, Bangalore. When the cheques were presented through Canara Bank, Sheshadripuram Branch, Bangalore, the same were returned unpaid for the reason 'funds insufficient'. In this regard, bank had issued a memo dated 06.03.2013. Notice was issued on 19.03.2013, which was duly served on the accused. On 25.03.2013, accused had issued untenable reply to the notice. Hence, complainant filed a complaint under Section 138 of N.I. Act.
4. After taking cognizance, the trial Court registered a case in C.C.No.15433/2014. Summons was issued to the accused. In response to summons, accused appeared before the trial Court and was enlarged on bail. Substance of accusation was explained to the accused. Accused pleaded not guilty and claimed to be tried. -4-
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5. To prove the case of the complainant, complainant himself was examined as PW.1 and marked seven documents as Exs.P1 to P7. PW.1 was not appeared for further cross-examination of PW.1, hence, trial Court closed the evidence of PW.1 and recorded the statement of accused under Section 313 of Cr.P.C. The accused had totally denied the evidence of PW.1 and adduced his evidence as DW.1, but the trial Court did not give opportunity to DW.1 for cross-examination. Even the trial Court has not provided an opportunity to the complainant to submit his arguments and pronounced the impugned judgment of acquittal.
6. A perusal of evidence of PW.1 it is crystal clear that the trial Court has received the evidence of PW.1 by way of affidavit instead of examination-in-chief on 20.01.2015. On that day, at the request of accused counsel, evidence of PW.1 was deferred for cross- examination. On 02.03.2015 PW.1 was partly cross- examined and then at the request of accused counsel, -5- NC: 2023:KHC:46525 CRL.A No. 780 of 2015 further cross-examination was deferred and case was posted to 12.03.2015. On that day, both PW.1 and accused were absent. An exemption application was filed on behalf of accused, same was allowed. Then, case was adjourned to 17.03.2015. On 17.03.2015, the Presiding Officer was on leave, hence, case was adjourned to 27.03.2015. On 27.03.2015, PW.1 was absent, accused was present, then case was posted to 07.04.2015. On 07.04.2015, PW.1 was absent, accused was present, then case was adjourned to 17.04.2015. On 17.04.2015, PW.1 was absent, accused was present, hence, the trial Court posted the case for statement under Section 313 of Cr.P.C., then case was posted to 20.04.2015. On that day, accused was present and statement of accused under Section 313 of Cr.P.C. was recorded. Then case was posted to 25.04.2015. On that day, accused was absent, then case was posted to 30.04.2015. On 30.04.2015, examination-in-chief of DW.1 was recorded and then case was posted to cross of DW.1 on 08.05.2015. On 08.05.2015, accused was present, complainant was -6- NC: 2023:KHC:46525 CRL.A No. 780 of 2015 absent. Hence, cross of DW.1 was taken as nil and case was posted for arguments on 02.06.2015. On 02.06.2015 accused was present, complainant absent and arguments on behalf of complainant's side not addressed and accused side arguments was heard and then on 05.06.2015, the trial Court acquitted the accused.
7. A careful examination of the order sheet maintained by the trial Court, it is crystal clear that the trial Court has not given sufficient opportunity to the accused to cross-examine PW.1 when PW.1 has not appeared before the trial Court for further cross- examination. The trial Court could have dismissed the case for non-prosecution, instead of that, it has closed the evidence of PW.1 without assigning any reason and recorded the statement of accused under Section 313 of Cr.P.C. Even after adducing the evidence of DW.1, the trial Court has not provided an opportunity to the complainant to cross-examine DW.1. In the memorandum of appeal, the complainant/appellant has clearly stated -7- NC: 2023:KHC:46525 CRL.A No. 780 of 2015 that the non-appearance of the complainant before the trial Court is due to bonafide reason. The complainant had lost the track of the matter and wrongly noted the date of hearing and thereafter, he went abroad as preplanned., hence, he could not appear before the trial Court.
8. Considering the facts and circumstances of the case, it is just and proper to provide one more opportunity to the complainant to adduce his evidence and also to cross-examine DW.1. Hence, I proceed to pass the following:
ORDER
1. The appeal is allowed;
2. The impugned judgment of acquittal passed by the XV Addl. Chief Metropolitan Magistrate, Bangalore City in C.C.No.15433/2014 dated 06.06.2015 is hereby set aside;-8-
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3. The matter is remitted back to the trial Court with a direction to provide an opportunity to both the parties to adduce their evidence;
4. The complainant/appellant shall appear before the trial Court for further cross- examination. The trial Court is also directed to provide an opportunity to the complainant to cross-examine DW.1;
5. The trial Court is directed to issue Court notice to both parties to appear before the Court and after appearance of both the parties, the trial Court shall proceed with the case in accordance with law;
6. Registry is directed to send a copy of this judgment along with trial Court records to the concerned trial Court.
Sd/-
JUDGE PGG