BANGALORE-60 v. (BY SRI. T R RAMAKRISHNA, ADVOCATE (ABSENT)

Appellant/complainant feeling aggrieved by judgment of Trial Court on the file of XXII A.C.M.M., Bangalore in C.C.No.13203/2014 dated 10.07.2015 preferred appeal.

#2. Parties to the appeal are referred with their ranks as assigned in the Trial Court for the sake of convenience.

#3. Heard the arguments.

#4. After hearing arguments of both sides and on perusal of Trial Court records, so also the impugned judgment under appeal, the following points arise for consideration: 1) Whether the impugned under appeal passed by Trial Court in acquitting the accused for the offence punishable under Section 138 of - 3 - NC: 2024:KHC:5608 CRL.A No. 1060 of 2015 N.I.Act is perverse, capricious and legally not sustainable? 2) Whether any interference of this Court is required?

#5. On careful perusal of oral and documentary evidence placed on record, it would go to show that accused is friend of complainant. Accused was carrying garments business as proprietor of VMS Apparels. Accused for the purpose of his business needs borrowed an amount of Rs.3,50,000/- from complainant during month of August

#2013. Complainant has paid the said amount in the first week of August 2013. Accused promised to repay the said amount within a period of one month. Accused did not pay the amount as agreed. Complainant requested for return of his money. Accused in order to discharge legally enforceable debt issued the cheque bearing No.167875 dated 13.08.2013 drawn on Sri.M Vishweshwaraiah Co-operative Bank Ltd. Rajarajeshwari nagara Branch, BEML Layout, Bengaluru for Rs.3,50,000/- Ex.P.1. Complainant presented the said cheque for encashment - 4 - NC: 2024:KHC:5608 CRL.A No. 1060 of 2015 through his banker Indian Bank, Kengeri branch, Bengaluru and the same was dishonoured vide bank endorsement Ex.P.2 dated 14.09.2013 as “Insufficient Funds”. Complainant issued demand notice dated

18.09.2013 Ex.P.3. The postal receipts are produced at Exs.P.4 and 5. Complainant has written to the postal authority regarding non receipt of acknowledgement card for having served consignment dated 21.10.2013 Ex.P.6. The postal authority has given reply Ex.P.7 that the consignment is delivered on 23.09.2013 to the addressee.

#6. The Trial Court has acquitted the accused on the ground that PW.1 has not appeared before the Court for the purpose of cross-examination in spite of giving sufficient opportunities and secondly the demand notice Ex.P.3 does not contain the signature of complainant. On careful perusal of records of the Trial Court, it would go to show that the Trial Court by order dated 05.06.2015 has observed PW.1 accused absent, representation. Call later. reads a under: - 5 - NC: 2024:KHC:5608 CRL.A No. 1060 of 2015 Complainant and accused continuously absent. In spite of imposing cost the presence of Pw1 for the purpose of cross examination the complainant did not turned up. The parties might compromise case. Hence, complainant it’s not turned up for the purpose of cross examination. The complainant is not interested to prosecute this case in accordance with law. Hence, the evidence of PW.1 is discarded. Case posted for defence evidence if any by 03.07.2015. On the said day the Court has noted the absence of complainant and accused and there was no representation from advocates and defence evidence was taken as nil, the matter was posted for arguments on the next day dated

04.07.2015. On the said day Trial Court noted the absence of both the counsels of complainant and accused and no arguments advanced. Hence, arguments was taken as nil, the matter was reserved for judgment on

11.07.2015. - 6 - NC: 2024:KHC:5608 CRL.A No. 1060 of 2015

#7. Learned counsel for accused got advanced the matter and filed an application under Section 311 of Cr.P.C. to recall the order dated 05.06.2015 and sought permission to cross-examine PW.1. The Trial Court by order dated 09.07.2006 noted the absence of complainant and accused was present. The Trial Court has rejected the application by order dated 09.07.2015. On the next day itself the impugned judgment under appeal came to be passed acquitting the accused.

#8. Learned counsel for complainant has endorsed no objection to allow the application filed by accused under Section 311 of Cr.P.C. However, in spite of it the Trial Court has proceeded to reject the said application on the premises that the evidence of PW.1 was discarded by order dated 05.06.2015. Therefore, there was no question of recalling PW.1 for cross-examination. It is pertinent to note that the Trial Court not withstanding it’s own order dated 05.06.2015 and the order dated 09.07.2015 has appreciated the evidence of PW.1 in the judgment. The - 7 - NC: 2024:KHC:5608 CRL.A No. 1060 of 2015 Trial Court has to follow the procedure contemplated in chapter XX of Cr.P.C. for trial of summons cases by Magistrate from Section 251 to 255. In terms of Section 254 of Cr.P.C. where the Magistrate does not convict the accused under Section 252 or Section 253, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution, and also to hear the accused and take all such evidence as he produces in his defence. It is only thereafter on hearing both sides proceeded to pass judgment. The Trial Court has adopted the procedure unknown to law in disposing the matter without there being any evidence, since the Trial Court by order dated

05.06.2015 has discarded the evidence of PW.1. The said order was in force, even as on the date of pronouncement of judgment which was well within the knowledge of Trial Court Judge. However, in spite of it without there being any legal evidence on record proceeded to dispose of the matter on merits. - 8 - NC: 2024:KHC:5608 CRL.A No. 1060 of 2015

#9. The Trial Court on the earlier occasion allowed the application filed under Section 311 of Cr.P.C. dated

08.04.2015 subject to payment of cost of Rs.500/- and the matter was ordered to call at 3.00 p.m. When the matter was taken at 3.15 p.m. learned counsel for accused was absent and cost not paid. The deposition would go to show that, since accused and learned counsel remained absent so also cost not paid, therefore cross-examination was taken as nil. It means that PW.1 was very much available for cross-examination. It is the counsel for accused who did not chose to cross-examine PW.1 by paying cost. Therefore, the finding recorded by Trial Court that PW.1 has not appeared before the Court for cross-examination cannot be legally sustained.

#10. The second ground on which the Trial Court acquitted the accused is that complainant has not signed the demand notice Ex.P.3. Complainant has engaged the counsel to issue the demand notice and given the authority to issue notice, further to take all steps in - 9 - NC: 2024:KHC:5608 CRL.A No. 1060 of 2015 accordance with law. Therefore, there is no question of obtaining the signature of complainant on the demand notice issued by counsel. The demand notice issued by counsel under the due authority of the complainant is a valid demand notice and complainant was not expected to sign on the demand notice. It is also pertinent to note that complainant himself did never question the authority of his counsel in issuing the demand notice. Therefore, the said finding of the Trial Court that complainant has not complied Section 138(b) of N.I.Act by issuing valid demand notice cannot be legally sustained.

#11. The entire approach of Trial Court in disposing of the present case is not in accordance with law and the procedure contemplated in chapter XX for trial of summons case in terms of Section 251 to 255 of Cr.P.C., has not been followed. In fact and in reality there is no any legal evidence at all on record to dispose of the case on merits. When the Trial Court itself observes by order dated 05.06.2015 that the evidence of PW.1 is discarded, - 10 - NC: 2024:KHC:5608 CRL.A No. 1060 of 2015 then there was no question of posting the matter for defence evidence. The question of posting the matter for defence evidence would arise only when the complainant discharges initial burden of proving the fact that cheque Ex.P.1 was issued for lawful discharge of debt. It appears that the learned Trial Judge has adopted undue haste in disposing of the matter without there being any legal evidence on record and the procedure adopted by Trial Court in disposing of the case at any rate cannot be legally sustained. Therefore, the finding recorded by Trial Court in acquitting the accused is perverse, capricious and legally not sustainable and the same needs to be interfered by this Court. Consequently, proceed to pass the following: ORDER Appeal filed by appellant/complainant is hereby allowed. The judgment of Trial Court on the file of XXII ACMM, Bengaluru in C.C.No13203/2014 dated 10.07.2015 is hereby set aside. - 11 - NC: 2024:KHC:5608 CRL.A No. 1060 of 2015 The matter is remanded to the Trial Court for disposal of the same in accordance with law as expeditiously as possible on giving top priority, since it is a matter of 2015. In order to avoid further delay in the matter, since both the parties represented through their counsel are directed to appear before the Trial Court on 12.03.2024 without there being any notice to receive further instruction from the Trial Court. Registry to send back the records to Trial Court with a copy of this order. SD/- JUDGE GSR List No.: 1 Sl No.: 16