Bangalore District Court
Vishnu Vardhan @ K.V.Vardhan vs Kiran S.Javali S/O Late S.C.Javali on 31 December, 2019
IN THE COURT OF THE LX ADDITIONAL CITY CIVIL &
SESSIONS JUDGE, BENGALURU
(CCH-61)
Dated this the 31st day of December, 2019
:Present:
Sri Vidyadhar Shirahatti, LL.M
LX Addl. City Civil & Sessions Judge,
Bengaluru.
Crl.A.No.80/2019 and Crl.A.No.336/2019,
APPELLANT Vishnu Vardhan @ K.V.Vardhan, Aged
(In Crl.A.No.80/2019) about 45 years, R/at No288/18, 7th Cross,
1st Block, Jayanagar, Bengaluru.
(Sri Narayan Naik, Adv)
VS.
RESPONDENT Kiran S.Javali S/o Late S.C.Javali,
(In Crl.A.No.80/2019) Aged about 59 years, R/at No.37, 11th
Main, Vasanthnagar, Bengaluru.
(By Sri.C.S.K. Adv )
APPELLANT Kiran S.Javali S/o Late S.C.Javali,
(In Crl.A.No.336/2019) Aged about 59 years, R/at No.37, 11th
Main, Vasanthnagar, Bengaluru.
(Sri C.S.K Adv)
VS.
RESPONDENT Vishnu Vardhan @ K.V.Vardhan, Aged
(In Crl.A.No.336/2019) about 45 years, R/at No288/18, 7th
Cross, 1st Block, Jayanagar, Bengaluru.
(Sri Narayan Naik, Adv)
2 Crl.A.No.80/2019
&
Crl.A.No.336/2019
COMMON JUDGMENT
In these two Crl.Appeals are arising out the same
impugned judgment passed by the learned XV ACMM,
Bengaluru in C.C.No.30012/2017 dt:12/12/2018. Hence, they
are clubbed and taken up together for discussion for the sake
of convenience and to avoid repetition of facts.
2. In these two Appeals, the accused and
complainant have filed their respective appeals being
aggrieved by the learned XV ACMM, Bengaluru in
C.C.No.30012/2017 dt:12/12/2018 for offence punishable u/s
138 of N.I.Act on the file of XV ACMM, Bengaluru.
3. The appellant in Crl.A.No.80/2019 was the
accused and respondent therein was the complainant before
the trial Court and in Crl.A.No.336/2019 the appellant was the
complainant and respondent therein was the accused before
the trial court and they are referred to as per the ranks
assigned to them before the lower court.
3 Crl.A.No.80/2019
&
Crl.A.No.336/2019
4. The brief facts leading to this appeal can be
stated as under:-
The accused and complainant are well known to each
other from last several years. The accused approached the
complainant hand loan of Rs.15 lakhs/- for his personal
requirements. The complainant advanced the said hand loan
for Rs.15 lakhs as RTGS on 17/8/2016. Further to refund the
amount accused has issued two cheques. When the said
cheques were presented for encashment it was dishonoured
for the reasons 'insufficient funds '. Then the complainant got
issued legal notice to the accused who neither replied the
notice nor repaid the cheques amount.
5. Then the complainant presented the complaint
under section.200 of Cr.P.C., for offence under Sec.138 of
Negotiable Instruments Act. Learned Magistrate took
cognizance and registered the case against the accused for
offence punishable u/Sec. 138 of Negotiable Instruments Act
and secured the presence of accused who after appearance,
4 Crl.A.No.80/2019
&
Crl.A.No.336/2019
pleaded not guilty. Then the complainant examined himself
as PW1 and got marked documents as per Ex.P.1 to
Ex.P.11. After recording of statement of accused under
Sec.313 of Cr.P.C., the accused neither examined nor
produced any document on his behalf.
6. The learned Magistrate on hearing the arguments
on both sides, found the accused guilty and proceeded to
convict the accused for offence u/s. 138 of Negotiable
Instruments Act and sentenced him to pay a fine of
Rs.16,75,000/- and in default of payment of fine amount, the
accused shall undergo S.I. for a period of one year. Besides,
the trial Court awarded compensation of Rs16,70,000/- out of
the fine amount to the complainant acting u/s.357 of Cr.P.C.,
by passing the impugned judgment.
7. This judgment of conviction and sentence which
is now under challenge by the appellant/accused in
Crl.A.No.80/2019 on the following grounds:-
5 Crl.A.No.80/2019
&
Crl.A.No.336/2019
The impugned judgment of conviction and sentence
passed by the trial court is opposed to the settled principles
of law, facts and probabilities of the case. The learned
Magistrate grossly erred in not properly appreciating the oral
and documentary evidence available on record in proper
perspective. Learned Magistrate erroneously relied upon the
case of the complainant to hold that the accused guilty. The
trial judge failed to consider the cheque in question was not
issued for discharge of debt or liability. The learned
Magistrate has not provided sufficient opportunity to cross
examine the complainant. The impugned judgment of
conviction is unsustainable and not tenable in the eye of law.
Hence, prayed to set aside the impugned judgment of
conviction and to acquit the accused by allowing the appeal.
8. In the Crl.A.No.336/2019, the complainant
contended that, order of the trial court is contrary to law and
facts and requires to be inferred with by this court. He further
contended that, trial court in awarding the sentence for
violation of section 138 of N.I.Act has failed to notice to time
6 Crl.A.No.80/2019
&
Crl.A.No.336/2019
gap between the date of receipt of amount and the initiation
of proceedings. Hence, the sentence is inadequate and
requires no interference. The trial court has failed to consider
that decision of the Hon'ble Supreme Court of India in levy of
sentence in such proceedings which being binding was
required to have been followed. The trial court in the context
of the value of the cheque dishonoured and the sentence
passed are not commensurate and hence requires to be
interfered with. The trial court has failed to appreciate that
there being no defense put forth and the defense evidence
having accepted the offence, the sentence passed is meager
in nature and hence requires interference. Hence, he prays
to set aside the impugned judgment and enhance the fine
and sentence imposed on the accused.
9. After filing of this appeal, notice duly served on
the respondent who made his appearance through a counsel.
The trial Court records, have been secured.
7 Crl.A.No.80/2019
&
Crl.A.No.336/2019
10. Heard arguments of learned counsel for appellant
and learned counsel for respondent.
11. Perused the records.
12. In the light of the contentions taken up in the
memorandum of appeal, the points that arise for my
determination are as follows;
1) Whether the impugned judgment of
conviction is opposed to the settled
principles of law, facts and probabilities of
the case?
2) Whether the procedure adopted by the
learned Magistrate in convicting the
accused is against to criminal
jurisprudence?
3) Are there any grounds to interfere in the
impugned judgment of conviction?
4) Whether there are any grounds to enhance
the fine amount?
5) What order?
8 Crl.A.No.80/2019
&
Crl.A.No.336/2019
13. My findings on the above points are as follows:
Point No.1 : In the Affirmative
Point No.2 : In the Affirmative
Point No.3 : In the Affirmative
Point No.4 : In the Negative.
Point No.5 :As per final Order
REASONS
14. Points No.1 to 3:- All these points are taken up
together for discussion for the sake of convenience and
to avoid repetition of facts.
15. I have carefully gone through the contents of
appeal memo, trial Court records and the impugned
judgment.
16. It is the specific case of the complainant that
accused received a sum of Rs.15,00,000/- to meet his urgent
necessities and for repayment of the said amount issued the
two cheques in question i.e., Ex.P.4 and 5. It is the further
case of the complainant that since the cheques which were
issued by the accused came to be bounced back as
9 Crl.A.No.80/2019
&
Crl.A.No.336/2019
insufficient funds, the accused is liable to be convicted for
offence punishable u/Sec. 138 of Negotiable Instruments Act.
17. On going through impugned judgment, as well as
trial court records, it clearly discloses that after examining the
complainant the accused remained absent, hence, the
statement of accused u/Sec.313 of Cr.P.C, has been
dispensed and case has been set down for defense
evidence. Hence, learned trial judge taking the note of
absence of the accused and without hearing on the
arguments of accused passed the impugned judgment. That
apart, complainant has not been subjected to cross
examination by the accused.
18. Even otherwise, there is no provision in the
criminal procedure code to pronounce judgment of conviction
in the absence of accused. The learned Magistrate instead of
directing the complainant to take coercive steps to secure the
presence of the accused, hurriedly proceeded to dispose of
the matter in the absence of accused. As such, the procedure
10 Crl.A.No.80/2019
&
Crl.A.No.336/2019
adopted by the learned Magistrate in disposing off the matter
in the absence of accused is unknown to law and the same is
illegal and arbitrary.
19. In this regard, I am supported by an authority
reported in ILR 2005 KAR 3648 in the case of M/s.Mac
Charles (I) Ltd., Vs. Chandrashekar and another, wherein
Hon'ble High Court of Karnataka held as under:-
(a) Karnataka Criminal Rules of Practice - Chapter
IV - Rule 2 - Negotiable Instruments Act, 1881, Sec.138,
144, 145 - Code of Criminal Procedure, 1973, Sections -
62, 63, 64, 65, 126, 273 - Where for a considerable period
the accused cannot be apprehended, despite efforts by
court, whether case against him may be separated in
terms of Rule 2 of Chapter IV of the Karnataka Criminal
Rules of Practice - HELD - In a criminal trial where the
presence of the accused is a must and where the
presence of the accused could not be secured. In the
manner known to law within a reasonable time, the case
against such accused will have to be split up in the
manner as provided under Chapter IV of Karnataka
Criminal Rules of Practice and the case against the
remaining accused who are present before the court
could be proceeded with further in accordance with law.
The same will be procedure applicable even in cases
11 Crl.A.No.80/2019
&
Crl.A.No.336/2019
instituted for the alleged offences under Sec.138 of the
Negotiable Instruments Act.
20. On perusal of the above said authority it becomes
amply clear that the presence of accused in criminal trial is a
must and in case, the presence of accused could not be
secured, the procedure under Chapter IV of Karnataka
Criminal Rules of Practice has to be followed. Herein this
case, the learned Magistrate has proceeded to pass
judgment in the absence of accused in violation of the
procedure known to law. On this ground itself, the impugned
judgment of conviction deserves to be set aside, without
touching merits of the case.
21. Having regard to all these facts and
circumstances of the case, I am of the considered view that
the learned Magistrate grossly erred in passing the impugned
judgment of conviction and sentence in the absence of
accused without cross examining the complainant,
dispensing the statement of accused u/Sec.313 of Cr.P.C.
12 Crl.A.No.80/2019
&
Crl.A.No.336/2019
and without giving opportunity given to the accused to led his
defense. As such, there are reasonable and sufficient
grounds to interfere and set aside the impugned judgment of
conviction and sentence passed by the trial court. The
judgment of conviction and sentence passed by the trial court
is opposed to the principles of law and procedure. As such,
the circumstances warrant that by setting aside the judgment
of conviction and sentence, the matter needs to be remitted
back to the court below with a direction to dispose the matter
afresh in accordance with law in the light of observations
made above. With these observations, the appeal deserves
to be allowed. Accordingly, I answer point No.1 to 3 in the
affirmative.
22. Point No.4: It is relevant to note that, the
complainant has preferred the present appeal No.336/209
u/Sec. 372 of Cr.P.C. It is pertinent to note that, the if
complainant aggrieved by the impugned judgment, he has to
prefer the appeal before the Hon'ble High Court of
Karnataka. Further that, there is delay of 27 days in
13 Crl.A.No.80/2019
&
Crl.A.No.336/2019
preferring of this appeal. It is important to note that, the
appellant has to explain each day delay from the judgment
till filing of this appeal. Admittedly, the appellant appeared
before the court and contested the case and he know all
about the proceedings of the court below. That apart in
before pronouncing the judgment, the complainant was
present and well aware about the court proceeding and
addressed the argument and posting of the case to
judgment. So it goes to show that, appellant is having
knowledge about the impugned judgment of trial court.
23. On considering the entire arguments and I.A.No.I
with affidavit filed in support of I.A and case records at the
cost of repetition, it is inevitable to hold that, the appellant
slept over his right and not filed appeal with in the law of
limitation nor showed any bonafide reason for causing
27days delay in filing the appeal and same is unexplained
and also not made out any grounds to condone the delay and
not showed any arguable case on merits of the appeal
Hence, the appellant has also failed to prove the point raised
14 Crl.A.No.80/2019
&
Crl.A.No.336/2019
for consideration. Accordingly, I answer the point No.4 in
Negative.
24. Point No:5: In view of my findings on point No.1
to 4, I proceed to pass the following:-
ORDER
The Crl.appeal No.80/2019 filed by appellant u/Sec.374(3) of Code of Criminal Procedure is hereby allowed.
The Crl.appeal No.336/2019 filed by appellant/complainant u/Sec.372 of Code of Criminal Procedure is hereby dismissed.
The impugned judgment of conviction passed by the learned XV ACMM, Bengaluru, in CC No.30012/2017 dt.12/12/2016 is hereby set aside.
Consequently, the matter is remanded back to the court below with a direction to dispose of the matter afresh in accordance with law in the light of the observations made in this judgment.
15 Crl.A.No.80/2019& Crl.A.No.336/2019 The learned Magistrate is hereby directed to dispose off the matter in accordance with law, by affording reasonable opportunity to both the parties to put forth their case.
Both parties are directed to appear before the trial court on 30/1/2020 without expecting any notice from the court.
Office of the learned Magistrate is directed to put up the records in C.C.No.30012/2017 on 30/1/2020 before the open court.
Send a copy of this judgment to the lower Court along with LCR forthwith.
Office is hereby directed to keep the original copy of this judgment in Crl.A.No.80/2019 and copy shall be thereof in Crl.A.No.336/2019.
*** (Directly dictated to Stenographer on computer, thereafter corrected and then pronounced by me in the open court on this the 31st day of December, 2019) (Vidyadhar Shirahatti) LX Addl.City Civil & Sessions Judge, Bengaluru.
16 Crl.A.No.80/2019& Crl.A.No.336/2019 Common Judgment pronounced in the open court. Vide separately ORDER The Crl.appeal No.80/2019 filed by appellant u/Sec.374(3) of Code of Criminal Procedure is hereby allowed.
The Crl.appeal No.336/2019 filed by appellant/complainant u/Sec.372 of Code of Criminal Procedure is hereby dismissed.
The impugned judgment of conviction passed by the learned XV ACMM, Bengaluru, in CC No.30012/2017 dt.12/12/2016 is hereby set aside.
Consequently, the matter is remanded back to the court below with a direction to dispose of the matter afresh in accordance with law in the light of the observations made in this judgment.
The learned Magistrate is hereby directed to dispose off the matter in accordance with law, by affording reasonable opportunity to both the parties to put forth their case.
17 Crl.A.No.80/2019& Crl.A.No.336/2019 Both parties are directed to appear before the trial court on 30/1/2020 without expecting any notice from the court.
Office of the learned Magistrate is directed to put up the records in C.C.No.30012/2017 on 30/1/2020 before the open court.
Send a copy of this judgment to the lower Court along with LCR forthwith.
Office is hereby directed to keep the original copy of this judgment in Crl.A.No.80/2019 and copy shall be thereof in Crl.A.No.336/2019.
(Vidyadhar Shirahatti) LX Addl.City Civil & Sessions Judge, Bengaluru.