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2017 DIGILAW 1101 (KAR)

B. M. Somashekarappa, Proprietor v. M. Sridhar

2017-08-01

RATHNAKALA

body2017
JUDGMENT : 1. Heard the learned Counsel for the petitioner. There is no representation for the respondent. 2. For convenience, parties will be referred to as per their ranking before the trial Court. 3. The allegation is, the petitioner borrowed a loan of Rs.1,60,000/- during July 2005 and to discharge the said liability, he issued two cheques payable on 23.9.2005 both drawn on Bank of Baroda, Palace Orchards Branch, Bangalore. On presentation of the said cheques, they were dishonoured with an endorsement "funds insufficient". Even after service of legal notice, he has not repaid the amount. The Court took cognizance of the matter and issued summons to the accused. He pleaded not guilty of the accusation read over to him. The complainant examined himself as PW-1 and marked documents Exs.P1 to P7. The cheques in question were marked as Exs.P1 and P2. 4. The accused though represented by his Counsel did not choose to cross-examine PW-1. The statement of the accused under Section 313 of Cr.P.C. was recorded. Rebuttal evidence was not led for the accused. As per the judgment of the Trial Court, audience was given to both; the accused was found guilty of offence under Section 138 of Negotiable Instruments Act and he was imposed a fine of Rs.2 lakhs with default clause. 5. In appeal, the accused contended that, after recording his statement under Section 313, he sought permission to cross-examine the complainant. But his application was rejected. Hence, the order of the court below is against the principles of natural justice. 6. The lower appellate court observed that when the case was posted for judgment on 15.11.2007, learned Counsel appearing for the accused filed two applications under Section 311 of Cr.P.C. for permission to cross- examine PW-1 and another application under Section 315 of Cr.P.C. for permission to lead defence evidence. Those applications were rejected on the ground that the copy of the applications were not served on the other side and the judgment was ready for pronouncement. Though sufficient opportunity was given to the accused, he did not utilize the same. The learned Appellate Judge further observed that, there was no proper explanation by the accused for not producing the additional documents, which he intended to produce as his evidence unless the appeal came to be rejected. 7. Though sufficient opportunity was given to the accused, he did not utilize the same. The learned Appellate Judge further observed that, there was no proper explanation by the accused for not producing the additional documents, which he intended to produce as his evidence unless the appeal came to be rejected. 7. Sri.Prakash M.Patil, learned Counsel appearing for the revision petitioner submits that, opportunity was not provided to the petitioner. 8. From the lower court records, only one application filed under Section 311 of Cr.P.C. dated 12.10.2007 is seen wherein accused sought to recall PW- 1 for the purpose of cross-examination. Though case was posted to 25.10.2007 on the previous hearing date i.e., on 24.9.2007, on the application being filed for advancing the case, it appears, the case was pre-poned and called on 12.10.2007. On the said date, statement of the accused was recorded and no order is passed on the application under Section 311 of Cr.P.C. and the case is posted to 25.10.2007, however, adjourned to 31.10.2007 for defence evidence. On the request of the accused, again it was adjourned to 14.11.2007 as last chance for defence evidence and arguments. On 14.11.2007, the request of the accused for time is rejected and posted for judgment and the judgment of conviction was pronounced on 15.11.2007. 9. It is evident that, before conclusion of the complainant's evidence, the accused had sought for opportunity to cross-examine PW-1. But without disposing of the said application, the Trial Court proceeded by recording the statement of the accused under Section 313 of Cr.P.C. Definitely it is an instance of denial of natural justice for the accused. Whether to allow the application or to reject it, lies within the propriety of the Trial Court handling said case. But without adjudicating the said application recording the statement under Section 313 of Cr.P.C. of the accused on the pre-poned date vitiates the proceedings. 10. It is one sided order passed without affording opportunity to the accused. Hence, requires interference by this revision court. The revision petition is allowed. The judgment of conviction and sentence passed by the XII Addl.CMM, Bangalore City, in C.C.No.14694/2006 dated 15.11.2007 and the order passed by the lower appellate court in Crl.A.No.1385/2007 dated 25.1.2010 is set aside. 10. It is one sided order passed without affording opportunity to the accused. Hence, requires interference by this revision court. The revision petition is allowed. The judgment of conviction and sentence passed by the XII Addl.CMM, Bangalore City, in C.C.No.14694/2006 dated 15.11.2007 and the order passed by the lower appellate court in Crl.A.No.1385/2007 dated 25.1.2010 is set aside. The matter is remanded to the Trial Court with a direction to consider the application filed by the petitioner/accused on 12.10.2007 under Section 309 of Cr.P.C. and pass an order in accordance with law and then dispose of the case on merits after giving opportunity to both the parties. Without waiting for the notice from the court, the parties are directed to appear before the concerned Court on 28.8.2017. Registry to transmit the LCRs to the concerned Courts.