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Karnataka High Court · body

2020 DIGILAW 29 (KAR)

V. Rajesh S/o Sri N. Venkatarame Gowda v. Srinivasan S/o late K. Rangaraju

2020-01-03

B.A.PATIL

body2020
ORDER : The present petition is filed by the accused under Section 482 of Cr.P.C. praying to quash the order passed by the 57th Additional CMM Court, Mayohall Unit, Bengaluru, in CC.No.54051/2017, dated 22.7.2019. 2. I have heard the learned counsel for the petitioner-accused. Respondent though served with notice has remained absent. The learned counsel for the respondent though appeared, has not filed vakalaton behalf of the respondent. There is no representation. 3. It is the contention of the learned counsel for the petitioner-accused that the respondent-complainant has filed a complaint under Section 138 of the N.I. Act. The complainant got himself examined as PW.1. Due to inconvenience of the learned counsel for the accused and as some information was not available, the complainant was not cross-examinaned by the accused. As such the accused filed an application under Section 311 of Cr.P.C. to recall PW.1 for cross-examinanation. Without giving any opportunity to recall PW.1 for his cross-examinanation, the trial Court has erroneously dismissed the application. It is his further contention that the accused has issued the cheque, but actually the transaction was between the complainant and the father of the accused. It is his further contention that recalling application ought to have been considered by the trial Court and an opportunity ought to have been given to the accused to crossexamine PW.1. It is his further contention that if an application is allowed and PW.1 is recalled for the purpose of cross-examination he undertakes on the day to be fixed by the trial Court, accused will fully crossexamine PW.1 on the same day. On these grounds, he prayed to allow the petition by setting aside the order dated 22.7.2019. 4. I have carefully and cautiously gone through the submission made by the learned counsel for the petitioner and perused the papers, including the impugned order passed by the trial Court. 5. As could seen from the order of the trial Court, after appearance of the accused, his plea was recorded. Accused did not file any application to crossexamine the complainantPW.1. As such, the case was posted for defence evidence. Subsequently on 26.9.2018, accused filed an application to recall PW.1 for the purpose of cross-examinanation, the said application was allowed on payment of costs of Rs.1,000/. In spite of the specific direction, the complainant was not crossexamined by the accused. Accused did not file any application to crossexamine the complainantPW.1. As such, the case was posted for defence evidence. Subsequently on 26.9.2018, accused filed an application to recall PW.1 for the purpose of cross-examinanation, the said application was allowed on payment of costs of Rs.1,000/. In spite of the specific direction, the complainant was not crossexamined by the accused. He also changed his advocate, who prayed for time to crossexamine PW.1. Again, the case was adjourned to 28.12.2018 for cross-examinanation of PW.1. Again the time was sought for by the accused. However, the case was adjourned on payment of costs of Rs.1,000/. The records show that time and again, the case was adjourned for cross-examinanation. But the aid opportunity has not been utilized by the accused to crossexamine PW.1. Such a conduct of the accused appears to be abuse of process of law. 6. However, the learned counsel for the accused-petitioner herein submits that if one more opportunity is given to him, he will crossexamine PW.1 on the same day on which Court fixes the date for cross-examinanation of PW.1. On consideration of the fact and circumstances of this case, I am of the considered opinion that if one more opportunity is given to the accused by imposing some costs, it would meet the ends of justice. Accordingly, following order is made: The petition is allowed. The order dated 22.7.2019 passed by the 57th Additional CMM Court, Bengaluru, in CC.No.54051/2017, stands set aside. The application filed by the petitioner under Section 311 of Cr.P.C. is allowed on payment of costs of Rs.10,000/-(Rupees ten thousand only). Out of the said amount of Rs.10,000/, an amount of Rs.5,000/shall be paid to the complainant PW.1 and the balance amount of Rs.5,000/shall be credited to the Karnataka Legal Services Authority, Bengaluru. The trial Court is directed to recall PW.1 and fix a date for his cross-examinanation by the accused. As per the undertaking given by the petitioner-accused, he has to cross examine PW.1 on the day when the trial Court fixes the date for his cross-examinanation. If on the said day, the petitioner-accused does not crossexamine PW.1, then under such circumstances, the Court is directed to proceed in accordance with law. In view of disposal of the main petition, I.A.No.1/2019 is disposed of.