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2004 DIGILAW 348 (KAR)

A. HASAN BAVA v. P. V. UPADHYA

2004-06-11

A.C.KABIN

body2004
A. C. KABBIN, J. ( 1 ) IN this petition filed under Section 482 of the Cr. P. C. , appellant in cri. Appeal No. 306 of 2002 pending in the Court of the XII Additional city Civil and Sessions Judge, Bangalore City, has challenged the order dated 24-11-2002 passed by the said Court. By that order, the learned additional Sessions Judge has dismissed the application of the ' petitioner filed under Section 391 of the Cr. P. C. praying for permission to adduce his evidence and the evidence of two witnesses. ( 2 ) THE petitioner was the accused in C. C. No. 35056 of 2000 on the file of XVI Additional Chief Metropolitan Magistrate for an offence punishable under Section 138 of the Negotiable Instruments Act. After closure of the complainant's evidence, his statement under Section 313 of the Cr. P. C. was recorded on 18-1-2002 and the case was posted to 29-1-2002 for defence evidence. On the ground that for several dates, the accused/petitioner failed to adduce defence evidence, his case was closed by the learned Additional Chief Metropolitan Magistrate and after hearing the arguments, he passed a judgment on 5-3-2002 convicting the petitioner for an offence punishable under Section 138 of the Negotiable instruments Act and sentencing him to pay a fine of Rs. 15,05,000/-, in default, to undergo S. I. for one year. That judgment of conviction and sentence has been challenged by the petitioner before the learned XII additional City Civil and Sessions Judge, Bangalore City, in Criminal appeal No. 306 of 2002. In that appeal, he filed on 17-10-2003 an application under Section 391 of the Cr. P. C. for permission to adduce defence evidence on the ground that sufficient opportunity had not been given to him to lead defence evidence and to advance arguments. It was contended by him that cheques in question were given to one Ravikumar in the presence of two witnesses and the evidence of those two witnesses is very much necessary for the just decision of the case. He therefore prayed for an opportunity to tender his evidence and the evidence of those two witnesses. That application was considered by the learned additional Sessions Judge and he came to the conclusion that despite grant of several opportunities, the petitioner had failed to adduce defence evidence and that therefore there was no substance in the contention of the appellant/petitioner. He therefore prayed for an opportunity to tender his evidence and the evidence of those two witnesses. That application was considered by the learned additional Sessions Judge and he came to the conclusion that despite grant of several opportunities, the petitioner had failed to adduce defence evidence and that therefore there was no substance in the contention of the appellant/petitioner. In the result, he dismissed the petitioner's application by order dated 24-11-2002. The present petition has been filed challenging the said order. ( 3 ) SRI Shankarappa, learned Counsel for the petitioner submits that a perusal of the order sheet shows that proper opportunity had not been given to the petitioner and that therefore the matter requires consideration by this Court. He argues that the petitioner was abroad during the relevant period and due to ill-health, he could not come and attend the case for the purpose of adducing defence evidence. It is further argued that considering the materials now placed by the petitioner before the Appellate Court evidencing ill-health suffered by the petitioner during the relevant period, the petition may be allowed. ( 4 ) IT is seen from a perusal of the application filed by the petitioner under Section 391 of the Cr. P. C. before the Appellate Court that no such contention had been taken by the petitioner pleading his ill-health as the reason for his failure to adduce defence evidence. Even otherwise, a perusal of the copy of the order sheet produced by the petitioner shows that after recording the statement of the accused under Section 313 of the Cr. P. C. on 18-1-2002, the case was posted to 29-1-2002. The copy of the passport produced by the petitioner shows that he went to Sultanate of Oman on 27-1-2002 just two days prior to the date fixed by the Trial court. On 29-1-2002, time was sought for on behalf of the accused/petitioner and the case was adjourned to 4-2-2002. Thereafter also, the case was adjourned to 8-2-2002 and on the failure of the accused/petitioner to adduce defence evidence, the case was posted for arguments. For arguments also, the case was adjourned twice and only thereafter the case was posted for judgment. On 29-1-2002, time was sought for on behalf of the accused/petitioner and the case was adjourned to 4-2-2002. Thereafter also, the case was adjourned to 8-2-2002 and on the failure of the accused/petitioner to adduce defence evidence, the case was posted for arguments. For arguments also, the case was adjourned twice and only thereafter the case was posted for judgment. ( 5 ) SECTION 309 (1) of the Code of Criminal Procedure mandates that every trial shall be held as expeditiously as possible, and in particular, when the examination of witnesses has once begun, the same shall be continued from day-to-day until all the witnesses in attendance have been examined, unless the Court finds adjournment of the same beyond the following day to be necessary for reasons to be recorded. It is therefore clear that when once the trial begins, its postponement beyond the following day either for cross-examination or further evidence of other witnesses of the prosecution/complainant or for defence evidence can be only if the Court funds it necessary to do so. An accused, who makes himself unavailable on the day fixed for further proceeding, for any reason including his travel to a foreign country, cannot plead his inability to lead evidence; and on that ground cannot ask for postponement of the proceeding. Under such circumstances, when the court proceeds further, he cannot later complain that he had not been given reasonable or proper opportunity. Of course a person facing criminal trial is not precluded from pursuing his business interest or profession, but when he is required to attend the Court, he shall arrange his affairs in such a way that his presence before the Court on the day fixed is ensured. When despite grant of time for defence evidence, the accused fails to avail of the opportunity of leading defence evidence, he cannot complain that he was not given reasonable or proper opportunity. Proper and reasonable opportunity means an opportunity fairly appropriate under the circumstances of the trial and not denying the accused to put forth his case or to lead defence evidence. It does not mean that disregarding the provisions of Section 309 (1) of the Cr. P. C. which requires expeditious trial and in particular examination of witnesses on day-to-day basis, the Court should adjourn or postpone the proceedings just to suit the convenience of the accused. It does not mean that disregarding the provisions of Section 309 (1) of the Cr. P. C. which requires expeditious trial and in particular examination of witnesses on day-to-day basis, the Court should adjourn or postpone the proceedings just to suit the convenience of the accused. An accused facing a criminal trial, or a complainant prosecuting his complaint, shall be diligent and prompt in attending the Court and assisting the Court in the expeditious completion of the trial. ( 6 ) IN the present case, it is seen that full opportunity had been given to the accused/petitioner to adduce defence evidence and also to argue the matter, but that he made himself unavailable by going out of the country two days before the date fixed by the Court for defence evidence and later failed to turn up even on subsequent dates. It may also be observed that the order of the learned Additional City Sessions Judge passed on 24-11-2002 has been challenged in this petition in December 2003, nearly eleven months after the order. This clearly shows that this is a frivolous petition. The petition is, therefore, dismissed as it is devoid of any merits. --- *** --- .