Karnataka High Court
Mr. Rajesh R Nair vs Mr. Shivananda Naik on 28 February, 2022
Author: H.P. Sandesh
Bench: H.P. Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF FEBRUARY, 2022
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
CRIMINAL REVISION PETITION NO.492/2021
BETWEEN:
MR. RAJESH R NAIR
S/O RADHAKRISHNAN NAIR
AGED ABOUT 36 YEARS
CHIEF WORKS ENGINEER (MES)
GANGAMMA CIRCLE, JALAHALLI
BENGALURU-560013
... PETITIONER
(BY SRI ADITYA S KUMAR, ADVOCATE)
AND
MR. SHIVANANDA NAIK
S/O MAHABALESHWARA NAIK
AGED ABOUT 53 YEARS
R/AT NO 37, BANASHANKARI NILAYA
6TH CROSS, 2ND MAIN,
BAHUBALI NAGAR, JALAHALLI
BANGALORE-560013
... RESPONDENT
(BY SRI G.JAIRAJ, ADVOCATE)
THIS CRIMINAL REVISION PETITION IS FILED U/S.397(1)
R/W 401 CR.P.C BY THE PETITIONER PRAYING TO SET ASIDE
THE IMPUGNED JUDGMENT AND CONVICTION PASSED AGAINST
THE REVISION PETITIONER DATED 15.02.2019 (ANNEXURE-B)
IN C.C.NO.17202/2018 BY THE XII A.C.M.M., AT BENGALURU
2
AND ALSO THE JUDGMENT CONFIRMED BY THE LXIV CITY CIVIL
AND SESSIONS JUDGE, AT BENGALURU IN CRL.A.NO.796/2019,
DATED 04.03.2021 (ANNEXURE-A) AND ETC.
THIS CRIMINAL REVISION PETITION COMING ON FOR
ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
This matter is listed for admission.
2. Heard the learned counsel appearing for the petitioner. The learned counsel appearing for the petitioner submits that the Trial Court has erred in struck off the defence of the petitioner herein and the same amounts to violating the principles of natural justice and also violates Article 21 of the Constitution of India and right to fair trial has not been given, presumption of innocence has not been considered and prosecution to prove its case beyond reasonable doubt. In the present case, Section 143A of N.I. Act order itself is being an interim compensation order made at the stage of pretrial and the same had caused a serious prejudice to the accused/revision petitioner and the amended provision only helps the Courts to take adverse inference against the accused persons in a pretrial stage. Moreover, it will defeat the valuable right available to the 3 accused as per law and it is not the meaning that the accused/revision petitioner has committed the crime or accepted the accusation made in the complaint and the interim compensation payable under this Section may be recovered under Section 421 of Cr.P.C and unfortunately the Trial Court had not followed the procedure established by law and instead of that straightaway convicted the revision petitioner and the same is nothing but an illegal and arbitrary and also against the well settled provisions of law and hence, it requires interference of this Court.
3. The learned counsel appearing for the petitioner in support of his arguments filed a memo along with citations but the said citations are not pertaining to Section 138 of N.I. Act under which the statement of the accused has not been recorded under Section 313 of Cr.P.C and hence, the judgments relied upon by the counsel for the petitioner are not applicable to the case on hand. The main contention of the petitioner's counsel is that accused statement under Section 313 of Cr.P.C was not recorded by the Trial Court and the very approach of the Trial Court is erroneous. But the Trial Court in paragraph 5 of the 4 order held that the complaint is a summary trial and recording of statement under Section 313 of Cr.P.C was dispensed with and for the defence evidence, accused failed to cross-examine PW1 and it was also observed that on 19.01.2019, the counsel for accused failed to appear before the Court and inspite of issuance of NBW, they have not filed any application under Section 145(2) for adducing defence evidence and hence, defence evidence is taken as no evidence. Since accused has not at all cross- examined PW1, the evidence of PW1 is unchallenged, accused has violated the mandatory provision of Section 143A of N.I.Act, hence, defence evidence was struck off relying upon the decision reported in AIR 2014 SC 2528 in INDIAN BANK ASSOCIATION AND OTHERS vs UNIION OF INDIA AND OTHERS wherein the Apex Court considered Sections 138, 143, 145 of N.I. Act in a summary trial and the Trial Court also considered the material available on record which was marked on behalf of the complainant i.e., Exs.P1 to P9 and in paragraph 12 of the order, the Trial Court held that if really, accused had not at all borrowed the loan in question, he would not issued Exs.P1 and P2-cheques to the complainant for discharge of the loan and also not adduced defence evidence and also not cross- 5 examined PW1 and he has not disputed the issuance of cheques at Exs.P1 and P2. It is also emerged in the records that accused has not paid the amount as ordered by the Trial Court to pay the interim compensation and hence, the Trial Court came to the conclusion that accused had committed the offence punishable under Section 138 of N.I. Act and convicted him imposing fine of Rs.21 lakh and in default of payment of said fine amount, he shall undergo simple imprisonment for a period of three months.
4. Being aggrieved by the said order, an appeal was filed before the Appellate Court on the very same ground that statement of accused under Section 313 of Cr.P.C was not recorded and the matter shall be remanded to Trial Court for fresh disposal and the Appellate Court also taken note of the material on record and came to the conclusion that the documents which have been executed by the complainant are corroborates to his case and also taken note that PW1 had not been cross-examined and Trial Court has also considered the evidence adduced by the complainant and further observed that despite of sufficient opportunity was given, accused had failed to deposit 20% of the cheque amount within stipulated time and 6 hence, there was no compliance of mandatory provision of Section 143 of N.I.Act and Appellate Court also relied upon the judgments reported in AIR 2009 NOC 404 (KERALA) and 2014 AIR SCW 3462 and came to the conclusion that the petitioner herein has committed the offence punishable under Section 138 of N.I. Act and failed to cross-examine PW1 and not complied with the order as mandatory under Section 143A of N.I. Act and confirmed the order of the Trial Court.
5. Having heard the learned counsel appearing for the petitioner and also on perusal of the material available on record, it is clear that the scope of the revision is very limited and this Court has to take note of the illegality committed by both the Courts and if both the Courts were committed illegality and perversity in coming to the conclusion without considering the material placed on record, then this Court can invoke Section 401 of Cr.P.C but taking into consideration of the material on record, I do not find any perversity or illegality committed by both the Courts. The records revealed that the Trial Court had passed an order to pay 20% of the cheque amount and the same has not been paid and also not cross-examined PW1. The very 7 argument of the petitioner's counsel is that the statement under Section 313 of Cr.P.C was not recorded and in support of his arguments, he relied upon several judgments but those judgments are not in respect of Section 138 of N.I. Act and Section 143A of N.I. Act is clear that in a cheque bouncing case, an interim compensation can be granted up to 20%. The contention of the petitioner's counsel is that the interim compensation payable under Section 143A may be recovered as if it were a fine under Section 421 of Cr.P.C and the Court cannot struck off the defence and without following the procedure established by law, the Trial Court convicted the revision petitioner and the said contention cannot be accepted and hence, I do not find any merit in the petition to interfere with the order of the Trial Court as well as the Appellate Court.
6. In view of the discussions made above, I pass the following:
ORDER The revision petition is dismissed.
Sd/-
JUDGE SN