The High Court
Case Details
- 1 - NC: 2025:KHC:18536 CRL.RP No. 1422 of 2016 HC-KAR IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 2ND DAY OF JUNE, 2025 BEFORE THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR CRIMINAL REVISION PETITION No. 1422 OF 2016 BETWEEN: IMRAN S/O WAZIR AGED ABOUT 34 YEARS BUSINESSMAN HIGH-TECH GARMENTS SHOP No.9, S.M.JAIN COMPLEX GANDHIBAZAR SHIVAMOGGA – 576 101. (BY SMT. MOHANA KUMARI B V, ADVOCATE FOR SRI ABUBACKER SHAFI, ADVOCATE) …PETITIONER AND: SHRENIK S/O LATE SHA HAJARIMAL JI AGED ABOUT 31 YEARS BUSINESSMAN R/O SRI AMBIKA KRUPA K.R.PURAM ROAD SHIVAMOGGA – 576 101. …RESPONDENT
Legal Reasoning
(BY SRI MANJU B S, ADVOCATE - ABSENT) THIS CRL.RP IS FILED UNDER SECTION 397 Cr.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER DATED 28.10.2014 PASSED BY THE JMFC-II COURT, SHIVAMOGGA IN C.C.No.534/2014 AND SET ASIDE THE JUDGMENT AND ORDER Digitally signed by NIRMALA DEVI Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:18536 CRL.RP No. 1422 of 2016 HC-KAR DATED 3.10.2016 PASSED BY THE III ADDITIONAL S.J., SHIVAMOGGA IN CRL.A.No.165/2014 AND ETC., THIS PETITION COMING ON FOR FINAL HEARING THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR ORAL ORDER 1. This revision petition is filed praying to set aside the judgment dated 03.10.2016 passed in Crl.A. No. 165/2014 by the III Additional Sessions Judge, Shivamogga whereunder the appeal filed by the petitioner challenging the judgment of conviction dated 28.10.2014 passed in C.C. No. 534/2014 by JMFC II Court, Shivamogga is dismissed confirming the judgment of conviction for offence under Section 138 of Negotiable Instruments Act (hereinafter referred to as the N.I. Act.). 2. Heard learned counsel for petitioner. Learned counsel for respondent is absent. 3. Petitioner was the accused in C.C. No. 534/2014 on the file of JMFC II Court, Shivamogga and respondent was the complainant therein. Said case has - 3 - NC: 2025:KHC:18536 CRL.RP No. 1422 of 2016 HC-KAR been registered for offence under Section 138 of N.I. Act. The petitioner has been convicted in the said criminal case for offence under Section 138 of N.I. Act and has been sentenced to pay fine of Rs.4,20,000/-. The petitioner challenged the judgment of his conviction passed in C.C. No. 534/2014 in Crl.A. No. 165/2014 before the III Additional Sessions Judge, Shivamogga. Said appeal came to be dismissed by judgment dated 03.10.2016. The petitioner has challenged the judgments passed in the said criminal case and criminal appeal. 4. Learned counsel for petitioner would contend that the trial Court has not given an opportunity to the petitioner to cross-examine P.W.1 – complainant. Said aspect is also not looked into by the appellate Court. 5. On perusal of the order sheet in C.C. No. 534/2014 of the trial Court, the date of appearance of the petitioner – accused was on 28.07.2014. On that day counsel for the petitioner filed vakalath for the petitioner – accused and also filed an application under Section 205 of - 4 - NC: 2025:KHC:18536 CRL.RP No. 1422 of 2016 HC-KAR Cr.P.C. The trial Court adjourned the matter. On the next date, i.e., on 25.08.2014 - the date of appearance of petitioner – accused the trial Court recorded in the order sheet as under: “Accused is present. Sri.HKMR., Advocate filed bail application on behalf of the accused. Heard. Bail application filed by the accused is allowed subject to the following conditions; 1. Accused shall execute personal bond for Rs.25,000/- 2. Accused shall appear before the court on all the hearing dates. Bond executed. Substance of the accusation is stated to be accused. Accused pleaded not guilty and submitted to he has defense to make. Complainant is examined as PW.1. Ex.P-1 to 5 are marked. Statement of the accused is recorded U/s. 313 Cr.PC. Accused has chosen to - 5 - NC: 2025:KHC:18536 CRL.RP No. 1422 of 2016 HC-KAR lead his evidence. Evidence of the accused if any by :20.9.2014.” 6. Considering the above aspect, on the date of appearance of the petitioner – accused, the plea has been recorded and the complainant has been examined as P.W.1 and got marked Ex.P.1 to Ex.P.5. On the same day, statement of the petitioner – accused under Section 313 of Cr.P.C. has been recorded and case has been adjourned for recording the evidence of the petitioner – accused. On perusal of the deposition of P.W.1 there is no mention of cross-examination of complainant – P.W.1 by the petitioner – accused. The petitioner - accused and his counsel were present on 25.08.2014. On that day the plea of the petitioner – accused has been recorded, so also evidence of complainant – P.W.1. Inspite of presence of petitioner – accused and his counsel there is no mention regarding cross-examination of complainant - P.W.1 by the petitioner – accused either in the deposition or in the order sheet. This shows that the petitioner – accused has not - 6 - NC: 2025:KHC:18536 CRL.RP No. 1422 of 2016 HC-KAR been given an opportunity to cross-examine the complainant – P.W.1. The trial Court has not stated anything regarding cross-examination of complainant – P.W.1 by the petitioner – accused. The trial Court was carried away by the fact that the petitioner – accused has not led any defence evidence. The petitioner – accused has a right to cross-examine complainant – P.W.1 to prove his defence. Said right has been deprived by the trial Court. Even the appellate Court has not considered the said aspect and observed as under: “In spite of sufficient opportunity provided, the accused did not made any venture to cross- examine the PW.1 and has also not adduced any defence evidence.” 7. The appellate Court ought to have noted the fact of not giving opportunity to the petitioner – accused to cross-examine complainant - P.W.1. Considering the above aspects it is clear that the trial Court and the appellate Court have committed an error in giving a - 7 - NC: 2025:KHC:18536 CRL.RP No. 1422 of 2016 HC-KAR finding that the petitioner – accused has committed the offence under Section 138 of N.I. Act without affording him an opportunity to cross-examine complainant – P.W.1. Therefore, the judgments of the trial Court and the appellate Court requires to be set aside and the matter requires to be remanded to the trial Court for affording an opportunity to the petitioner – accused for cross- examining the complainant – P.W.1. 8.
Decision
In view of the above, the following; O R D E R i. Petition is allowed. ii. Judgment dated 28.10.2014 passed in C.C. No. 534/2014 by the JMFC II Court Shivamogga and judgment dated 03.10.2016 passed in Crl.A. No. 165/2014 by the III Additional Sessions Judge, Shivamogga, are set aside. iii. The matter is remanded to the trial Court with a direction to give an opportunity to the - 8 - NC: 2025:KHC:18536 CRL.RP No. 1422 of 2016 HC-KAR petitioner – accused for cross-examining the complainant – P.W.1 and thereafter dispose the matter in accordance with law. iv. The petitioner – accused is directed to appear before the trial Court on 30.06.2025 without anticipating any Court notice. Sd/- (SHIVASHANKAR AMARANNAVAR) JUDGE LRS List No.: 1 Sl No.: 49