Karnataka High Court
Sri Suresh vs Sri G V Raghavendra on 11 August, 2017
Author: Aravind Kumar
Bench: Aravind Kumar
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF AUGUST, 2017
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
CRIMINAL PETITION NO.5955/2017
BETWEEN:
SRI. SURESH KRISHNAMURTHY
S/O. LATE N.S. KRISHNAMURTHY,
AGED ABOUT 63 YEARS,
RESIDING AT NO.219, 1ST 'B' CROSS,
II MAIN ROAD, KASTURI NAGAR,
BANGALORE-560 040
...PETITIONER
(BY SRI. SRINIVASA RAO S.S., ADVOCATE)
AND:
SRI. G.V.RAGHAVENDRA
S/O. LATE G.V.IYER,
AGED ABOUT 41 YEARS,
RESIDING AT NO.22/77, IV CROSS,
RPC LAYOUT, VIJAYANAGAR,
BANGALORE-560 040
... RESPONDENT
(BY SRI.N.SHANKARANARAYANA BHAT, ADV.)
THIS CRIMINAL PETITION IS FILED U/S 482 CR.P.C.
PRAYING TO SET ASIDE THE ORDER DATED 08.07.2017
REJECTING THE ITNERLOCUTORY APPLICATION FILED BY
THE PETITIONER U/S 311 OF CR.P.C. SEEKING RECALL
THE ORDER DATED 3.10.2015 AND PERMIT THE
PETITIONER TO LEAD DEFENCE EVIDENCE ON THE FILE
OF THE XVI A.C.M.M., BENGALURU IN C.C.NO.9445/2014
AND ALLOW THE SAID APPLICATION.
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THIS CRIMINAL PETITION COMING ON FOR
ADMISSION THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
Heard Sri. Srinivas Rao S.S., learned counsel appearing for petitioner and Sri.N.Shankaranarayana Bhat, learned counsel appearing for respondent. Perused the records.
2. Respondent herein has filed a complaint under Section 200 Cr.P.C. against petitioner - accused alleging that on discharge of debt a cheque issued by petitioner has been dishonoured when presented for collection and thereby accused committed an offence punishable under Section 138 of Negotiable Instruments Act, 1881.
3. During the pendency of proceedings before trial Court petitioner-accused filed an application for tendering the evidence and sought for recalling the order dated 30.10.2015. Said application came to be resisted to by the complainant and trial Court by order dated 27.07.2017 dismissed the same on two grounds 3 namely; (i) that there is a delay of 1 year 8 months; (ii) accused had failed to make use of opportunity of tendering the documents at the earlier stage and also on the ground that details of the documents sought to be produced are not forthcoming.
4. It is the contention of Sri.Srinivas Rao S.S., learned counsel appearing for petitioner that these documents were obtained under Right to Information Act from the Bank and as such, they could not be produced at earlier point of time and in order to rebut the presumption, which is in favour of the complainant and to establish that there is no legally enforceable debt, these documents are required to be produced and non-consideration of the application by trial Court in proper perspective has resulted in miscarriage in administration of justice.
5. Per contra, Sri.N.Shankaranayarana Bhat, learned counsel appearing for respondent supporting the order under challenge would submit that even at earlier point when petitioner had approached this Court 4 challenging the order of rejection of his application to cross-examine the complainant, which came to be affirmed by this Court in Crl.R.P.No.7540/2015 and this Court had not granted any opportunity to the petitioner-accused to lead further evidence and as such petitioner-accused cannot re-agitate the issue, which has reached finality. Hence, he prays for rejection of the petition.
6. Having heard the learned Advocates appearing for parties and on perusal of records it requires to be noticed that petitioner-accused had approached this Court in Crl.P.No.7145/2015 praying for order dated 03.11.2015 being set aside whereunder the application filed by the petitioner-accused under Section 311 of Cr.P.C. for recall of P.W.1 came to be rejected. This Court had noticed that petitioner did have an opportunity to cross-examine the witness and having not utilised the said opportunity, he would not be entitled to seek for cross-examination of P.W.1. This 5 Court had made the following observation while dismissing the petition:
"The petitioner is facing xxxxx to recall P.W.1. This was impermissible since it is not as if the petitioner did not have an opportunity to cross examine the witness. In that view of the matter, it was open for the petitioner to have tendered evidence and produce any document that he wanted to confront the complainant with. Therefore, xxxxx is rejected."
7. On account of rejection of permission sought to recall P.W.1, as observed by this Court, petitioner- accused filed an application under Section 311 of Cr.PC. seeking permission to lead his evidence and produce documents. At paragraph 4 of the application, it has been categorically asserted by the petitioner that documents which are sought to be produced were not in his custody and it was procured through Right to Information Act from the concerned authority.
8. On account of details of said documents not forthcoming, petitioner-accused filed an affidavit today specifying thereunder the details of those documents. A 6 perusal of said affidavit would disclose that documents, which is sought to be produced by petitioner-accused relates to payment slips, statement of accounts pertaining to accused account at ICICI Bank and statement of respondent (complainant) given in response to the Petition No.1107/2013 to the Police Inspector / Station House Officer, Vijaynagar Police Station and endorsements issued by the Police Inspector, Vijaynagar Police Station, all said to be relating to transaction in question.
9. In the light of these documents having been obtained subsequently under Right to Information Act and burden being cast on the accused to rebut the presumption arising under Section 139 of Negotiable Instruments Act, 1881, an opportunity requires to be granted to the petitioner-accused to establish defence by way of rebuttable evidence. Hence, this Court is of the considered view that order passed by trial Court requires to be set aside by allowing the application filed for recall and tendering evidence.
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10. However, it is made clear that no opinion is expressed with regard to the contents of documents or its authenticity including its admissibility. These are the aspects which can be examined by the jurisdictional Magistrate at the time of marking of these documents and it is needless to state that respondent-complainant would be at liberty to not only cross-examine the petitioner-accused but would also be at liberty to tender his further evidence, if any.
Hence, I proceed to pass the following:
ORDER
(i) Criminal petition is hereby allowed.
(ii) Order dated 27.07.2017 passed in CC No.9445/2014 is hereby set aside.
(iii) Application filed by petitioner-
accused under Section 311 of Cr.P.C.
is hereby allowed subject to observations made hereinabove.
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(iv) Both parties are directed to cooperate with the trial Court for expeditious disposal of the complaint.
In view of criminal petition having been allowed, I.A.No.1/2017 for stay does not survive for consideration and same stands rejected.
SD/-
JUDGE DR