Allowed

Smt a B Neela v. Sri N Dinesh Reddy

Karnataka HC12 Sept 2014CRL.RP/336/2008

Case brief

AI extract

What is this about?

The High Court of Karnataka reasoned that evidence tendered by a witness who failed to offer himself for further cross-examination post-chief examination was incomplete and could not be accepted. Consequently, the criminal appeal reversing the trial court's conviction was dismissed, and the conviction was affirmed.

What did the court decide?

Criminal Revision Petition allowed; judgment of lower appellate court set aside; conviction by Trial Court affirmed.

Smt a B Neela Vs Sri N Dinesh Reddy — Cheque Dishonour | Karnataka HC (2014)

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IN THE HIGH COURT OF KARNATAKA AT BANGALORE

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DATED THIS THE 12^TH DAY OF SEPTEMBER, 2014

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BEFORE

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THE HON’BLE MR. JUSTICE ANAND BYRAREDDY

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CRIMINAL REVISION PETITION No.336 OF 2008

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BETWEEN:

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Smt. A.B.Neela, Wife of Sri. B.S.Shambu, Aged about 41 years, No.200, 100 feet Road, 2^nd Block, Banashankari 3^rd Stage, Bangalore – 560 085. …PETITIONER

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(By Shri. B.G.Suryakumar, Advocate for M/s. Esskhay Associates)

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AND:

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Sri. N. Dinesh Reddy, Son of Sri. Narasimhiah, Major, residing at No.1703, Menaka Nivas, 5^th Stage, I Phase, 6^th Cross, 1^st Main, BEML Layout, Rajarajeshwari Nagar, Bangalore – 560 098. …RESPONDENT

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(vide court order dated 19.6.2014 notice to respondent is held sufficient)

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This Criminal Revision Petition is filed under Section 397 of the Code of Criminal Procedure, 1973, praying to set aside the judgment dated 1.12.2007 passed by the XXXVI Additional City Civil Judge and Sessions Judge at Bangalore in Criminal Appeal No.1568/2006 and confirm the trial court judgment dated 25.8.2006 passed by the XIX Additional Chief Metropolitan Magistrate at Bangalore in C.C.No.1339/2004.

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This petition coming on for Orders this day, the court made the following:

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O R D E R

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Heard the learned Counsel for the petitioner. The learned

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Counsel for the respondent remains absent inspite of the matter

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having been adjourned on several occasions to hear the respondent.

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The present petitioner was the complainant, who had

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brought a complaint for an offence punishable under Section

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138 of the Negotiable Instruments Act, 1881 (Hereinafter referred to as the ‘NI Act’, for brevity). The complaint was contested and the respondent had tendered evidence in support

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of his defence and he was cross-examined. Thereafter, an application was filed seeking to recall the said respondent, who was examined as DW.1. That application having been allowed, the respondent failed to appear before the court and offer himself for further cross-examination. Therefore, a nonbailable warrant was issued, which had remained unexecuted. Thereafter, the matter was heard and the court convicted the respondent, eschewing the evidence tendered by him, as he did not offer himself for further cross-examination inspite of a specific order in that regard and convicted him to pay a fine of Rs.22,00,000/-. That having been challenged in appeal, the primary contention of the appellant therein was that the trial court could not have eschewed the evidence in entirety, when the witness had been cross-examined in full and it is only on a later application filed by the complainant that there was an order directing the respondent to present himself for further cross-examination. The non-compliance with the direction did not justify the trial court in discarding the evidence that was

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already recorded and it ought to have been considered in adjudicating the matter. The appellate court has accepted such a contention and has reversed the judgment of the Trial Court. It is that which is under challenge in this petition.

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Hence, the point for consideration, as contended by

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the learned Counsel for the petitioner, is whether the appellate court was justified in holding that notwithstanding the respondent not having appeared before the court and offered himself for further cross-examination as was directed by the trial court, his evidence ought to have been taken into consideration in addressing the complaint.

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In this regard, the learned Counsel for the petitioner

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places reliance on a decision of this court in Criminal Revision Petition No.376/2007 dated 25.2.2012, wherein this court, in extenso, considered the effect of a witness not offering himself for cross-examination and whether the evidence so tendered without offering himself for cross-examination can be accepted by the court and considered as a part of the record in

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addressing the matter and has held that the evidence is not complete if the witness has not offered himself for crossexamination and has also observed that in terms of Section 167 of the Evidence Act, 1872, there is no question of raising a ground that there has been improper admission or rejection of evidence, to claim a new trial or reversal of any decision. The Section is reproduced hereunder:-

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“ 167. No new trial for improper admission or rejection of evidence – The improper admission or rejection of evidence shall not be ground of itself for a new trial or reversal of any decision in any case, if it shall appear to the court before which such objection is raised that, independently of the evidence objected to and admitted, there was sufficient evidence to justify the decision, or that if the rejected evidence had been received, it ought not to have varied the decision.”

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In that view of the matter, this bench fully endorses

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the opinion expressed by the learned Single Judge in the above case. With reference to the several provisions of the Evidence Act, it could not be said that without the witness offering

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himself for cross-examination, the evidence tendered by him could be accepted.

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Consequently, the present petition is allowed. The

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judgment of the lower appellate court is set aside. The

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conviction by the Trial Court is affirmed.

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Sd/- JUDGE

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Smt a B Neela v. Sri N Dinesh Reddy

Case brief

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What did the court decide?

Smt a B Neela v. Sri N Dinesh Reddy

Case brief

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