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2020 DIGILAW 630 (KAR)

Dugge Gowda v. S. R. Sridhar

2020-03-04

K.S.MUDAGAL

body2020
JUDGMENT 1. 'Whether the trial court was justified in rejecting the application of the petitioner under Section 311 Cr.P.C.?' is the question involved in this case. 2. The petitioner is challenging the order dated 7.12.2019 on the file of VI Additional Small Causes Judge & 31st Addl.C.M.M., Bengaluru City, in C.C.No.1431/2018. By the impugned order, the trial court rejected the application of the petitioner/accused filed under Section 311 Cr.P.C. for further cross-examination of PW-1. 3. On the complaint of the respondent, the petitioner is facing prosecution in C.C.No.1431/2018 before the trial court for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881. 4. The respondent alleged that the petitioner issued a cheque for Rs.3,00,000/- without making arrangements for realization of the same, thereby cheated him. The respondent was examined before the trial court as PW-1 and was cross-examined. Thereafter the respondent produced certain documents and on his application, he was further examined in chief on 10.6.2019. On that day, on the request of the petitioner, the matter was adjourned to 27.6.2019 for further cross-examination of PW-1. Thereafter till 26.9.2019 though the matter was listed from time to time, the petitioner did not cross-examine PW-1. Therefore, the trial court discharged the witness on 26.9.2019. 5. The petitioner filed an application under Section 311 Cr.P.C. to recall PW-1 for further cross-examination. The trial court by the impugned order rejected the said application on the ground that despite granting sufficient opportunity, the petitioner did not do the needful and having regard to the judgment of the Honble Supreme Court in Indian Bank Association and Others v. Union of India and Others (2014) 5 SCC 590 , the matter has to be concluded within the time frame specified in the said judgment. 6. Learned Counsel for the petitioner submits that the petitioner should have given an opportunity to cross-examine PW-1 with reference to the documents produced by him subsequently, otherwise his defence was going to be prejudiced. 7. Learned Counsel for the respondent seriously opposes the application on the ground that the petitioner was guilty of procrastination and deserves no indulgence. 8. In his application, the petitioner claimed that his Counsel was engaged before some other court, therefore, he could not do the needful. Such contention may not be a justifiable contention. 7. Learned Counsel for the respondent seriously opposes the application on the ground that the petitioner was guilty of procrastination and deserves no indulgence. 8. In his application, the petitioner claimed that his Counsel was engaged before some other court, therefore, he could not do the needful. Such contention may not be a justifiable contention. However, the fact remains that the omission on the part of the counsel should not prejudice the defence of the accused. If the petitioner was not permitted to cross-examine PW-1 for the fault of others, that may lead to failure of justice. 9. Having regard to the facts and circumstances, it is a fit case to show indulgence to the petitioner putting him to stringent terms. Therefore, the petition is allowed. The impugned order dated 7.12.2019 in C.C.No.1431/2018 passed by the VI Additional Small Causes Judge & 31st Addl.C.M.M., Bengaluru City, is hereby set aside. The application of the petitioner under Section 311 Cr.P.C. is allowed on payment of cost of Rs.5,000/- payable to the respondent by 19.3.2020 i.e., next date of hearing fixed before the trial court. The petitioner shall cross-examine PW-1 on that day without fail. If he fails to pay the cost and cross-examine PW-1 on that day, he shall not be entitled to any further indulgence.