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Karnataka High Court · body

2019 DIGILAW 1234 (KAR)

Abdulsaheb v. Oneness Chit Funds Pvt. Ltd.

2019-06-13

B.A.PATIL

body2019
JUDGMENT : B.A. Patil, J. This petition has been filed by the petitioner/accused challenging the judgment and order, dated 15.07.2017, passed by the II Additional District and Sessions Judge, Belagavi, in Crl.A. No.42/2017 whereby the judgment of conviction and order of sentence, dated 04.02.2017, passed by the Judicial Magistrate First Class II, Belagavi, in C.C.C. No.64/2016 was confirmed and the appeal was dismissed. 2. I have heard the learned counsel for the petitioner and the learned counsel for the respondent. 3. The gist of the complaint is that the complainant is having in money transactions. The complainant is a registered company. The accused is the member of the said chit fund company and he being the highest bidder in action No.18, he bid for Rs.10,50,000/-. The complainant paid the price amount to the accused through cheque. The accuse being the beneficiary of the chit amount failed to make payment of installment Nos.14 to 25 to the tune ofRs.7,96,076/-. On repeated requests, the accused issued a cheque bearing No.612349, dated 03.11.2015, drawn on HDFC Bank. When the said cheque was presented for encashment, the same was returned with an endorsement "Funds insufficient", with a memo dated 05.11.2017. Thereafter, the complainant issued a legal notice and it was served on the accused on 03.12.2015. However, no reply was given by the accused and a complaint was registered for the offence under Section 138 of the Negotiable Instruments Act. 4. The Trial Court, after considering the material on record, convicted the accused. Being aggrieved, the petitioner/accused preferred an appeal before the District and Sessions Court and the District Court confirmed the said order of the Trial Court. 5. The only contention that has been taken up by the learned counsel for the petitioner/accused is that the accused has not been given a reasonable opportunity of being heard. It is his further submission that the complainant was likely to settle the matter, he persuaded for settlement and, as such, the accused did not seriously contest the matter and did not cross-examine the complainant nor led any evidence, but the Trial Court, ultimately, without giving any opportunity has passed the impugned judgment of conviction and order of sentence. It is his further submission that even the first Appellate Court did not heed to the said request of an opportunity being granted to the petitioner/accused and passed the order erroneously. It is his further submission that even the first Appellate Court did not heed to the said request of an opportunity being granted to the petitioner/accused and passed the order erroneously. It is his further submission that in order to give a fair opportunity that the matter may be remanded back to the Trial Court by setting aside the impugned judgments and the Orders of the Trial Court as well as the first Appellate Court. 6. Per contra, learned counsel for the respondent-complainant vehemently argued and submitted that the petitioner/accused has been given full opportunity and has not made use of the same. It is his further submission that the accused has deliberately not cross-examined the complainant and has not led any evidence; the petitioner/accused is lethargic and has not shown any interest in the prosecuting the case and under such circumstances, the petitioner/accused is not entitled for any leniency. On these grounds, he prayed to dismiss the petition. 7. I have carefully and cautiously considered the submissions made by the learned counsel appearing for the parties and perused the material. 8. Though several contentions have been raised, I feel that if those contentions are considered and answered on the merits of the case, it would prejudice both the parties before the Court below. The main contention which has been taken by the learned counsel for the petitioner/accused is that the petitioner has not been given adequate opportunity to cross-examine the complainant and to lead his evidence; that there are fair chances of success in this case. It is also the contention of the learned counsel for the petitioner that the complainant persuaded the accused that the matter would be settled and in that light the petitioner/accused did not cross-examine the complainant nor led any evidence. The said submission appears to have some force. Hence, I feel that the accused/petitioner has to be given an opportunity to cross-examine the complainant and to lead his evidence. If the petitioner is not given an opportunity, then the principle of audi alteram partem is going to be defeated. A reasonable opportunity is required to be granted to the accused. 9. Hence, I feel that the accused/petitioner has to be given an opportunity to cross-examine the complainant and to lead his evidence. If the petitioner is not given an opportunity, then the principle of audi alteram partem is going to be defeated. A reasonable opportunity is required to be granted to the accused. 9. In view of the above circumstances, if both the judgments and orders are set aside, the matter is remitted to the Trial Court to consider the matter afresh to give full opportunity to both the parties, then the same would meet the ends of justice. However, the learned counsel for the respondent/complainant states that if the matter is remitted back to the Trial Court, it may take a long time to dispose off the case and the complainant will be put to greater hardship. The learned counsel for the petitioner/accused submits that the accused has already deposited 25% of the cheque amount and if the said amount is ordered to be paid to the complainant, in terms of Section 148 of the Negotiable Instruments Act, then it would meet the ends of justice. I feel that if the said amount is ordered to be paid to the complainant, it would meet the ends of justice. 10. In the light of the above, the petition is allowed. The judgment and order, dated 15.07.2017, passed by the II Additional District and Sessions Judge, Belagavi, in Crl.A. No.42/2017, and the judgment and order, dated 04.02.2017, passed by the Judicial Magistrate First Class II, Belagavi, in C.C. No.64/2016 are set aside. The matter is remitted back to the Trial Court with a direction that the petitioner/accused and the respondent/complainant be given full opportunity to putforth their contentions, the petitioner may be permitted to cross-examine the complainant, and after hearing both the parties, suitable orders may be passed. Since the matter is of the year 2016 and already the complainant has spent much time, the Trial Court is directed to dispose of the case expeditiously within an outer limit of eight months from the date of receipt of a copy of this order. The Trial Court is also directed to disburse 25% of the amount deposited by the accused in favour of the complainant, in terms of Section 148 of the Negotiable Instruments Act, on proper identification and by taking adequate sureties. The Trial Court is also directed to disburse 25% of the amount deposited by the accused in favour of the complainant, in terms of Section 148 of the Negotiable Instruments Act, on proper identification and by taking adequate sureties. In the event the petitioner/accused is acquitted, then the complainant has to repay the said amount disbursed in his favour with interest at the bank rate prevalent on the date when the amount was released.