Karnataka High Court
Mr S B Krishnaiah vs Mr. T R Ramaiah on 15 July, 2013
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 15TH DAY OF JULY 2013
BEFORE
THE HON'BLE MR JUSTICE K. N. KESHAVANARAYANA
CRIMINAL PETITION No.76/2013
BETWEEN:
Mr.S.B.Krishnaiah,
Aged about 56 years,
S/o. Late S.B.Byrappa,
Residing at No.7, 5th Cross,
10th Main, 4th Phase,
7th Block, BSK 3rd Stage,
Behind Co-Operative training College,
Bangalore-560 085. ... Petitioner
(By Smt.S.B.Lakshmi, Advocate)
AND:
Mr.T.R.Ramaiah,
Aged about 61 years,
S/o. Rangashamaiah,
Residing at No.34,
3rd Main Road,
1st Stage, 2nd Phase,
Manjunathanagara,
West of Chord Road,
Bangalore-560 010. ... Respondent
(By Sri.Vijaykumar.S.Jatla, Advocate)
This Criminal Petition is filed under Section 482 of the
Cr.P.C praying to set aside the order dated 20.12.2012 passed
by the XIV Additional Chief Metropolitan Magistrate, Mayo Hall,
Bangalore in C.C.No.79885/2009.
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This Petition coming for admission on this day, the
Court made the following:
ORDER
Though this petition is listed today for admission, the matter is heard for final disposal with the consent of the counsels appearing on both sides.
2) In a prosecution launched by the respondent against the petitioner for the offence punishable under Section 138 of the Negotiable Instruments Act ( for short, N.I. Act'), the petitioner after closure of his side of evidence, filed application under Section 243(2) of Cr.P.C. seeking to summon the Manager of the Bank, in which he held Savings Bank Account and which he stated to have closed in the year 2006, for the purpose of proving that the said account had been closed in the year 2006. He also sought for production of the Cheque Issuing Register maintained by the said Bank. The application was opposed by the respondent-complainant.
3) The learned Magistrate after hearing both sides, by the order impugned in this petition, rejected the said application mainly on the ground that the petitioner could prove the said fact by producing other documentary evidence. 3 The learned Magistrate has also noticed that the said application came to be filed after the evidence of the accused was closed.
4) The respondent-complainant in his complaint alleged that the accused availed hand loan of Rs.9,50,000/- (Rupees Nine Lakhs Fifty Thousand) on 03.09.2003 promising to repay the same within one year, however, he did not repay the same within the promised time of one year and ultimately, the accused issued the cheque-in-question on 21.02.2009, which came to be dishonoured on presentation for encashment. It is further alleged that, in spite of service of statutory notice, the accused failed to pay the amount covered under the cheque. However, it is the defence of the petitioner- accused that there was no monetary transaction between him and the complainant; that at no point of time he had borrowed any amount from the complainant and that the cheque-in- question was not issued for discharge of any debt or liability due by him. It is his further contention that he closed-down the Savings Bank Account in respect of which the cheque-in- question relates to, in the year 2006 itself, as such, on 4 21.02.2009 there was no occasion for him to issue the cheque- in-question.
5) Thus, from the above it is clear that it is the specific defence of the accused that he closed-down the Savings Bank Account maintained by him in the year 2006 itself and to prove that factor, he sought summoning the Bank Manager.
6) The accused is entitled to prove the said factor by adducing acceptable evidence. The prove the fact as to on what date the Savings Bank Account was closed, summoning the Bank Manager is very much necessary. The said factor cannot be proved by any other mode, as there would be no other documentary evidence to prove the said fact and all the documents relating to the closure of the account would be only with the Bank.
7) The learned Magistrate without referring to the documents which the petitioner could have produced in proof of the said fact, has rejected the application by observing that the petitioner-accused can prove the said fact by producing other documentary evidence.
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8) Having regard to the facts and circumstances of the case and the specific defence taken by the accused, the learned Magistrate ought to have allowed the application and ought to have summoned the Bank Manager with a direction to produce the necessary documents in possession of the Bank. The rejection of the application has resulted in denial of opportunity to the petitioner-accused to prove his defence. The fact that, the application was filed after the accused led evidence, could not be the sole ground to reject the said prayer. By allowing the said application, no hardship would be caused to the respondent-complainant. The examination of the said witness and the document sought to be produced are very much necessary for the proper decision in the matter. In this view of the matter, the court below is not justified in rejecting the application. Learned counsel for the respondent also did not seriously dispute this position.
9) In view of the above discussion, the petition is allowed. The order dated 20.12.2012 passed by the XIV- Additional C.M.M., Bangalore, in C.C. No.79885/2009 dismissing the application, is set aside. The application 6 filed under Section 243(2) of Cr.P.C. by the petitioner is allowed. The learned Magistrate shall summon the Bank Manager with a direction to produce necessary documents.
Sd/-
JUDGE KGR*