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2020 DIGILAW 2122 (KAR)

Murali Mohan B N v. S. Nagaraj

2020-10-23

K.S.MUDAGAL

body2020
JUDGMENT K.S.Mudagal, J. - With consent of both the parties, the matter is taken up for hearing. 2. Petitioner challenged the order of conviction and sentence passed by the trial Court against him for the offence punishable under Section 138 of Negotiable Instruments Act, 1881 ( the N.I. Act for short) and confirmed by the First Appellate Court. 3. The petitioner was the accused and the respondent was the complainant before the trial Court. For the purpose of convenience, the parties will be referred to henceforth with their ranks before the trial Court. 4. The complainant filed the complaint under Section 200 of Cr.P.C. against the accused seeking his prosecution for the offence punishable under Section 138 of the N.I. Act. He alleged that the petitioner without arranging the funds issued cheques Exs.P1 and P2 for a sum of Rs.5,00,000/- and Rs.4,00,000/- for discharge of his liability, thereby cheated him. He further alleged that the said cheques when presented to the bank were dishonoured as per bank endorsement Exs.P3 and P4 as funds insufficient . He issued statutory notice Ex.P5 calling upon the accused to make good the cheques amount which was neither replied nor complied. 5. The trial Court after taking cognizance of the offence, summoned the accused, conducted the trial. Initially before the trial Court, the complainant was examined as PW.1 and Exs.P1 to P16 were marked. Accused was examined as DW.1 and on his behalf, Exs.D1 to D18 were marked. 6. The trial Court after hearing the parties, by the judgment dated 13.01.2016 convicted the accused for the offence punishable under Section 138 of the NI Act and sentenced him to fine of Rs.15,50,000/- and in default to undergo simple imprisonment for one year. Out of the said fine amount, Rs.15,20,000/- was ordered to be paid to the complainant as compensation. 7. Accused challenged the said order before LXV Additional City Civil and Sessions Judge, Bengaluru City (CCH-66) in Crl.A.No.159/2016. When the matter was pending before the Sessions Court, accused filed an application under Section 391 of Cr.P.C. seeking leave to adduce additional defence evidence. The Sessions Court/First Appellate Court vide order dated 13.07.2016 allowed the said application and directed the trial Court to take additional defence evidence of the accused and resubmit the records by 31.08.2016. 8. The trial Court recorded further additional defence evidence. The Sessions Court/First Appellate Court vide order dated 13.07.2016 allowed the said application and directed the trial Court to take additional defence evidence of the accused and resubmit the records by 31.08.2016. 8. The trial Court recorded further additional defence evidence. Accused examined another witness as DW.2 and got marked Exs.D19 to D23. Then the trial Court resubmitted the records to the First Appellate Court on 29.08.2016. 9. The First Appellate Court records show that on 13.07.2016 after passing the order on application under Section 391 of Cr.P.C., it did not fix next hearing date. It appears that thereafter the matter was not called before the First Appellate Court for hearing till 02.09.2016. The order sheet of the First Appellate Court shows that on 02.09.2016, the office placed records of the appeal with endorsement file was mixed up with some other file, hence put up today . 10. It appears that the learned Sessions Judge without noticing the earlier order dated 13.07.2016 ordered to list the matter for hearing on 17.09.2016. Thereafter, the First Appellate Court heard the arguments and by the impugned order dated 06.01.2017 dismissed the appeal. 11. The first ground of challenge to the order of the First Appellate Court is that, the First Appellate Court itself permitted additional defence evidence to be taken, but not considered the said evidence at all. Therefore, Sri A.V.Ramakrishna, learned Counsel for the petitioner submits that on that ground the matter requires to be remanded to the First Appellate Court for appreciation of the entire evidence and reconsideration. 12. Per contra, Sri S.Nagaraj, learned Counsel for the respondent submits that even excluding the evidence of DW.2 and Exs.D19 to 23 to convict the accused there was sufficient material before the trial Court and the First Appellate Court to convict the accused, therefore the trial Court and the First Appellate Court convicted the accused. He further submits that the matter is being dragged since 2009, therefore, remand of the matter is not warranted. He further submits that in the revision petition the ground regarding non perusal of the evidence of DW.2 and Exs.D19 to 23 were not taken. 13. It is borne out from the records that the First Appellate Court by the order dated 13.07.2016 allowed the application of the accused under Section 391 of Cr.P.C. for adducing additional defence evidence. That order has attained finality. 13. It is borne out from the records that the First Appellate Court by the order dated 13.07.2016 allowed the application of the accused under Section 391 of Cr.P.C. for adducing additional defence evidence. That order has attained finality. The very fact of the First Appellate Court allowing such application indicates that the First Appellate Court felt that the evidence sought to be adduced was relevant. 14. Perusal of the judgment of the First Appellate Court shows that the First Appellate Court totally lost sight of the additional defence evidence adduced by virtue of its own order. In its judgment, the First Appellate Court goes on saying that on behalf of the accused DW.1 was examined and Exs.D1 to D18 were marked. But nowhere it refers to the evidence of DW.2 and Exs.D19 to 23. 15. As already pointed out, the records of the First Appellate Court themselves show that after directing the trial Court to record further evidence and resubmit the records, the First Appellate Court did not fix the date to enable itself to take further course of action. Only on 02.09.2016, the records were placed before the Judge of the First Appellate Court with endorsement file was mixed up with some other file. Hence put up today . Perusal of the judgment of the First Appellate Court shows that the First Appellate Court did not consider the evidence of DW.2 and Exs.D19 to 23 at all. 16. The First Appellate Court considered only the initial evidence adduced before the trial Court and reiterated the reasons of the trial Court and confirmed the judgment of the trial Court. 17. So far as the contention that such ground was not raised in the revision petition, in para xxii of the grounds of the revision petition, it is stated that the Sessions Judge without considering the evidence of the petitioner has mechanically confirmed the judgment and not evaluated the documents on record. That sufficiently covers the arguments of the learned Counsel for the accused with regard to the challenge to the First Appellate Court s judgment. More over, this Court in its revisional jurisdiction has to see whether the order of the First Appellate Court suffers any illegality, infirmity or impropriety. 18. The Hon ble Supreme Court in Jeet Ram v. Narcotics Control Bureau,2020 SCCOnline(SC) 735 held that the Appellate Court has to re-appreciate and reconsider the entire evidence. More over, this Court in its revisional jurisdiction has to see whether the order of the First Appellate Court suffers any illegality, infirmity or impropriety. 18. The Hon ble Supreme Court in Jeet Ram v. Narcotics Control Bureau,2020 SCCOnline(SC) 735 held that the Appellate Court has to re-appreciate and reconsider the entire evidence. Therefore the First Appellate Court was duty bound to consider the entire evidence. Failure on the part of the First Appellate Court to consider the evidence of DW.2 and Exs.D19 to 23 amounts to failure of the First Appellate Court to exercise its jurisdiction and goes contrary to the ratio of the judgment in Jeet Ram's case. 19. This Court is aware that the original proceedings were of the year 2009 and the respondent is a senior citizen who has succeeded before two Courts. Having regard to the aforesaid facts and circumstances of the case, the matter requires to be remanded to the First Appellate Court for reconsideration in a time bound manner. 20. Learned counsel for the respondent submits that the accused has deposited 50% of the cheque amount before the trial Court in compliance of the order passed by this Court while suspending the sentence. The complainant may be permitted to withdraw the said amount subject to any condition. This Court finds full justification in the said submission. Therefore, the petition is partly allowed. The judgment and order dated 06.01.2017 passed by the LXV Additional City Civil and Sessions Judge, Bengaluru in Crl.A.No.159/2016 confirming the order of conviction and sentence passed by the trial Court is hereby set aside. The matter is remanded to the First Appellate Court for reconsideration after giving opportunity of hearing to both the parties. The First Appellate Court shall appreciate the entire material before it and pass the judgment in Crl.A.No.159/2016 within two months from the date of receipt of copy of this order. To avoid further delay, the parties are hereby directed to appear before the First Appellate Court on 17.11.2020 without any further notice from the First Appellate Court. The complainant is permitted to withdraw the amount deposited by the accused before the trial court subject to furnishing sureties/security to the satisfaction of the trial Court. Registry shall transmit the records forthwith to the First Appellate Court. The complainant is permitted to withdraw the amount deposited by the accused before the trial court subject to furnishing sureties/security to the satisfaction of the trial Court. Registry shall transmit the records forthwith to the First Appellate Court. Till the appeal before the First Appellate Court is disposed of, the benefit of suspension of sentence passed in favour of the accused by the First Appellate Court shall continue.