Karnataka High Court
Sri Shivaraj Shetty vs Sri A Nagendra on 27 September, 2018
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27th DAY OF SEPTEMBER, 2018
BEFORE
THE HON'BLE MR.JUSTICE B.A.PATIL
CRIMINAL REVISION PETITION NO.235/2013
BETWEEN :
Sri Shivaraj Shetty
S/o Sri K.Seetharama Shetty
Aged about 34 years
R/o No.52/8, Vasantha Nilaya
II Cross, Tent Road,
Sevasandra,
Bangalore-560 036.
... Petitioner
(By Sri K. Shashi Kiran Shetty, Sr. Counsel)
AND :
Sri A. Nagendra
S/o late Ayodhya Ramaiah Shetty
Aged about 51 years
No.441, Old Madras Road,
K.R.Puram,
Bangalore-560 036.
... Respondent
(By Sri B. Visweswaraiah, Advocate - absent)
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This Criminal Revision Petition is filed under
Section 397 r/w Section 401 of Cr.P.C praying to set
aside the order dated 25.02.2013 passed by the
Addl. Sessions Judge, Presiding Officer, Fast Track
Court-III, Mayo Hall, Bangalore in Criminal Appeal
No.25166/2010 and consequently allow the
application filed by the petitioner under Section 391
of Cr.P.C Annexure-A and etc.
This Criminal Revision Petition coming on for
orders this day, the Court made the following:-
ORDER
The present petition has been filed by the accused challenging the order dated 25.2.2013 passed by the Additional Sessions Judge and the Presiding Officer, FTC-III, Mayo Hall Unit, Bangalore, in Criminal Appeal No.25166/2010 rejecting the application filed by the petitioner herein under Section 391 of Cr.P.C.
2. I have heard the learned Senior Counsel Sri Shashikiran Shetty representing the petitioner. Learned counsel appearing for the respondent- complaint has remained absent.
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3. It is the contention of the learned Senior Counsel that the accused-petitioner herein has filed Criminal Appeal No.25166/2010, challenging the order passed by the trial Court convicting him under Section 138 of N.I. Act and sentencing him to pay a fine of Rs.2,13,000/-, in default he has to undergo SI for six months. It is further submitted that the petitioner filed an application under Section 391 of Cr.P.C. to produce certain documents to show that earlier a suit was filed by the complainant for recovery of the money and the same was decreed and thereafter an execution petition came to be filed. When the warrant was issued for recovery of the said amount the petitioner has issued a cheque drawn on ICICI Bank dated 17.4.2017 for a sum of Rs.2,12,250/-. It is his further submission that the said cheque has not been issued because of any debt due to the complainant. He further submitted that -4- the said additional records also clearly go to show that the complainant has tampered the said cheque by incorporating numberical '1' in between '6' and '000' and the said cheque has been sent for FSL and the report has also been obtained to that effect. These facts clearly go to show that the complainant has not made out the case under Section 138 of N.I. Act as contemplated under law. He further submitted that in order to prove the case of the petitioner to rebut the presumption under the N.I. Act on preponderance of probabilities the said documents are throwing light and help to disprove the case of the complainant-respondent. He further submitted that the trial Court without properly appreciating the material placed on record has erroneously observed that the said records were already available with the petitioner-accused and they were within his knowledge and the same have not been produced and ultimately dismissed the said -5- application. He further submitted that in order to meet the ends of justice full opportunity has to be given to the petitioner-accused to prove his case. The dismissal of the said application is amounting to nothing but denial of justice. He further submitted that the Court below erred in not appreciating the contention of the petitioner-accused to produce the documents by filing an application under Section 391 of Cr.P.C. and without production of the said documents, it is going to prejudice the case of the petitioner-accused. On these grounds, he prayed to allow the petition and to set aside the impugned order of the Court below.
4. I have carefully and cautiously gone through the submissions made by the learned Senior Counsel who has also taken me through the material which has been produced along with the petition, so also the memo dated 14.9.2018. Admittedly, the -6- application came to be filed under Section 391 of Cr.P.C. for production of the additional documents to substantiate the case of the petitioner-accused. For the purpose of brevity I quote Section 391 of Cr.P.C. which reads as under:-
"391. Appellate Court may take further evidence or direct it to be taken
- (1) In dealing with any appeal under this Chapter, the Appellate Court, if it thinks additional evidence to be necessary, shall record its reasons and may either take such evidence itself, or direct it to be taken by a Magistrate, or when the Appellate Court is a High Court, by a Court of Session or a Magistrate.
(2) When the additional evidence is taken by the Court of Session or the Magistrate, it or he shall certify such evidence to the Appellate Court, and such Court shall thereupon proceed to dispose of the appeal. -7- (3) The accused or his pleader shall have the right to be present when the additional evidence is taken.
(4) The taking of evidence under this section shall be subject to the provisions of Chapter XXIII, as if it were an inquiry."
5. On going through the aforesaid Section, it enables the appellate Court to take further evidence or direct to take further evidence by the Court below in order to meet the ends of justice and to do full and true justice. This proposition of law has been laid down in the case of State of Gujarat Vs. Mohanlal Jitamalji Porwal and Another reported in AIR 1987 SC 1321 where in at paragraph 5 it has been observed as under:-
5. The next question which arises is as regards the request made by the learned Assistant Public Prosecutor for adducing additional evidence in order to -8- prove letter Ex. 26 received from the Mint Master certifying that the article in question was made of gold of the purity of 99.60. The request was made in order to invoke the powers of the Court under Section 391 of the Code of Civil Procedure, 1973, which inter alia provides that in dealing with any appeal under Chapter XXIX the appeal court, if it thinks additional evidence to be necessary, shall record its reasons and may either take such evidence itself or ask it to be taken by a Magistrate. The High Court rejected the prayer on the ground that it did not consider it "expedient in the interests of justice to open a new vista of evidence" in view of the fact that the offence had taken place six years back. The mere fact that six years had elapsed, for which -9- time-lag the prosecution was in no way responsible, was no good ground for refusing to act in order to promote the interests of justice in an age when delays in the Court have become a part of life and the order of the day. Apart from the fact that the alleged lacuna was a technical lacuna in the sense that while the opinion of the Mint Master had admittedly been placed on record it had not been formally proved the report completely supported the case of the prosecution that the gold was of the specified purity. To deny the opportunity to remove the formal defect was to abort a case against an alleged economic offender. Ends of justice are not satisfied only when the accused in a criminal case is acquitted. The Community acting
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through the State and the Public Prosecutor is also entitled to justice. The cause of the Community deserves equal treatment at the hands of the court in the discharge of its judicial functions. The Community or the State is not a persona-
non-grata whose cause may be treated with disdain. The entire Community is aggrieved if the economic offenders who ruin the economy of the State are not brought to books. A murder may be committed in the heat of moment upon passions being aroused. An economic offence is committed with cool calculation and deliberate design with an eye on personal profit regardless of the consequence to the Community. A disregard for the interest of the Community can be manifested only at the
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cost of forfeiting the trust and faith of the Community in the system to administer justice in an even handed manner without fear of criticism from the quarters which view white collar crimes with a permissive eye unmindful of the damage done to the National Economy and National Interest. The High Court was therefore altogether unjustified in rejecting the application made by the learned Assistant Public Prosecutor invoking the powers of the Court under Section 391 of the Code of Civil Procedure. We are of the opinion that the application should have been granted in the facts and circumstances of the case with the end in view to do full and true justice. The application made by the learned Assistant Public Prosecutor is therefore granted. The High Court will
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issue appropriate directions for the recording of the evidence to prove the report of the Mint Master under Section 391 Cr.P.C. when the matter goes back to High Court and is listed for directions. The appeal is therefore allowed. The order of acquittal is set aside. The matter is remitted to the High Court for proceeding further in accordance with law in the light of the abovesaid directions.
6. It is an exceptional general power conferred on the appellate Court. If the appellate Court feels that without additional evidence and the documents, there is every likelihood of failure of justice, then under such circumstances nothing is prevented under Section 391 Cr.P.C. to allow the party to produce the additional documents if need be. The only caveat which is imposed in this behalf is that the other side
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has to be given an opportunity to make out the said documents and no prejudicial to the defence. Additional evidence may be necessary or may not be necessary is a matter which has to be considered and appreciated in the case of appeals only at the time when the main appeal is going to be heard. The trial Court without application of mind and without considering the basic principles of law has heard the said application and has come to the conclusion that the said documents are not going to throw any light on the disposal of the criminal appeal. In this behalf, the Court below has erred while considering the application filed under Section 391 of Cr.P.C separately. The provisions of Section 391 of Cr.P.C. are synonymous with the provisions of Order XLI Rule 27 of CPC.
7. During the course of arguments, the learned Senior Counsel has brought to the notice of this
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Court that earlier the suit in O.S.No.5794/1994 was filed and an execution petition also filed in Ex.Case.No.1602/2002 and in that light the said cheque has been issued, that is a matter which has to be considered and appreciated at the time when the matter is going to be heard and decided on merits by the appellate Court. Keeping in view the facts and circumstances of the case, the documents which are intended to be produced are going to throw some light while taking a proper decision and in deciding the appeal before the appellate Court. They appear to be not irrelevant documents in the case. Without considering the said aspect, the appellate Court has wrongly and erroneously dismissed the application only on the ground that the said documents were within the knowledge of the petitioner and even the original records were missing and thereafter they have been secured, these are all matters not be considered at the time of
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consideration of the application and even the observations made by the Court below that the accused-petitioner did not make out any efforts to lead evidence with regard to the documents of which he wants to produce is not correct.
In the light of the discussion held by me above, petition is allowed.
The order dated 25.2.2013 passed by the Additional Sessions Judge and the Presiding Officer, FTC-III, Mayo Hall Unit, Bangalore, in Criminal Appeal No.25166/2010, is set aside and the appellate Court is directed to take those additional records which have been produced by filing an application under Section 391 of Cr.P.C. and hear the case on merits and if the said documents are relevant for the purpose of deciding the case or to meet the ends of justice, then the same may be dealt with in accordance with law.
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As could be seen from the records, the appeal is of the year 2010 and the same is pending since long time, the Court below is directed to dispose of the same as expeditiously as possible, but not later than the outer limit of six months from the date of receipt of a copy of this order.
Sd/-
JUDGE *ck/-