Allowed

Shivaji S/O Bharma Govekar v. the Belagavi District Wholesale

Karnataka HC3 Sept 2020CRL.RP/100240/2018

Case brief

AI extract

What is this about?

Criminal Revision Petition filed under Section 397 r/w 401 Cr.P.C. challenging conviction under Section 138 NI Act. Court allowed petition, holding that recording Section 313 statement before completing complainant's evidence violated Supreme Court directions in Indian Bank Association case. Case restored for re-trial starting with cross-examination.

What did the court decide?

Impugned judgments set aside. Case restored to Board of V-JMFC, Belagavi for re-trial commencing with cross-examination of respondent. Petition allowed.

Shivaji S/O Bharma Govekar Vs the Belagavi District… — Cheque Dishonour | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 3^RD DAY OF SEPTEMBER 2020

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BEFORE

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THE HON’BLE MR. JUSTICE B.M. SHYAM PRASAD

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CRIMINAL REVISION PETITION NO.100240/2018

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BETWEEN

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SHIVAJI S/O BHARMA GOVEKAR AGE: 36 YEARS, OCC: BUSINESS, R/O: H.NO.486, PATIL GALLI, KANABARGI, BELAGAVI.

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... PETITIONER

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(BY SRI.VITTHAL S TELI, ADVOCATE, SMT.REBECCA SOLOMAN, ADVOCATE)

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AND

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THE BELAGAVI DISTRICT WHOLESALE VEGETABLEL G.S.P. CO-OP. SOCIETY, FORT ROAD, BELAGAVI, REPRESENTED BY ITS MANAGER, SHRI.BAVKANNA S/O KEDARI HIROJI @ HIRJI, R/O: AT: POST: SAMBRA, TQ & DIST: BELAGAVI.

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... RESPONDENT

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(RESPONDENT SERVED BUT UNREPRESENTED)

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THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 R/W 401 OF CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT DATED 23.04.2018 IN CRIMINAL APPEAL NO.338/2017 BY THE XIADDL. DISTRICT & SESSION JUDGE, BELAGAVI WHEREIN CONFIRMING THE JUDGMENT DATED 2.12.2017 PASSED BY THE V- JMFC, BELAGAVI IN CC 637/2017 (OLD CC NO.1067/2014) FOR THE OFFENCE U/SEC.138 OF THE NEGOTIABLE INSTRUMENT ACT 1881, AND THEREBY ACQUIT THE PETITIONER/ ACCUSED.

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THIS CRIMINAL REVISION PETITION COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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Heard the learned counsel for the petitioner. The respondent though served, has remained absent. The impugned judgment dated 2^nd December 2017 in Criminal Case No.637/2017 (old Criminal Case No.1067/2014) on the file of the V-JMFC, Belagavi, and the judgment dated 23^rd April 2018 in Criminal Appeal No.338/2017 on the file of the XI Additional District & Sessions Judge, Belagavi, are perused.

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2 The petitioner has been convicted for an

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offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short, ‘the Act’ ) and sentenced to pay compensation of Rs.77,000/- with default simple imprisonment of six months. The learned counsel for the petitioner submits that the proceedings before the learned Magistrate is vitiated because the petitioner - accused’s plea is recorded simultaneously with recording the petitioner’s statement under Section 313 of the Code of Criminal Procedure

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(for short, ‘Cr.P.C.). On the same day when the petitioner’s plea and his statement under Section 313 of Cr.P.C are recorded, the respondent’s sworn statement that is recorded earlier is treated as evidence. The petitioner, when his statement is recorded under Section 313 of Cr.P.C, had neither cross-examined the respondent nor led in any evidence. The relevant portion of the order reads as follows:

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“Case advanced. Accused present.

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The substance of accusation stated to the accused. Accused pleaded not guilty and submitted to he has defence to make.

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Considering the decision of Hon’ble Supreme Court reported in ‘Indian Bank Association V/s Union of India and others (2014)(5) SCC 590 (decided on 21.04.2014)’.

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The sworn statement of the complainant is treated as the evidence of complainant.

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Statement of accused is recorded under Section 313 of Cr.P.C. Accused has chosen to lead his evidence.

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Hence for defence evidence.

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Call on 19.07.2017.”

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3 The petitioner did not have any opportunity

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to cross-examine the complainant-respondent when his statement under Section 313 of Cr.P.C. was recorded, and he is later permitted to cross-examine the respondent on an application.

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4 The learned counsel, while asserting that the procedure adopted by the learned Magistrate is contrary to the directions issued by the Hon’ble Supreme Court in ‘ Indian Bank Association V/s Union of India and others, canvasses that there is a procedural irregularity inasmuch as the statement of the petitioner under Section 313 of Cr.P.C. is recorded much before the completion of the respondent’s evidence. The statement under Section 313 of Cr.P.C. should have been recorded after the respondent’s evidence was completed including his cross-examination. This irregularity renders the entire proceeding from the stage of recording the accused’s plea vitiated. Therefore, neither of the impugned judgments can be sustained. The learned

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counsel relies upon a decision of this Court in Crl.R.P. No.100241/2018 decided on 13^th March 2019 in support of his submission that the impugned judgments will have to be set aside and the case remanded for re-

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trial from the stage of cross-examination of the respondent.

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5 On perusal of the records, it is seen the petitioner’s statement was recorded under Section 313 of Cr.P.C. when the respondent’s evidence was not completed, and that the procedure adopted by the learned Magistrate is not in consonance with the directions of the Hon’ble Supreme Court reported in ‘Indian Bank Association V/s Union of India and others supra. There is force in the submission and the request made by the learned Counsel for the petitioner. As such, both will have to be accepted.

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6 Therefore, the impugned judgment dated 2^nd December 2017 in Criminal Case No.637/2017 (old

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Criminal Case No.1067/2014) on the file of the V-JMFC, Belagavi, and the judgment dated 23^rd April 2018 in Criminal Appeal No.338/2017 on the file of the XI Additional District & Sessions Judge, Belagavi are set aside and the case is restored to the Board of V-JMFC, Belagavi, for re-trial commencing with the crossexamination of the respondent. The parties shall appear before the V-JMFC, Belagavi without further notice, on 14^th of October 2020. The revision petition is accordingly allowed.

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The amount deposited by the petitioner shall be refunded to the petitioner subject to identification.

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Sd/JUDGE

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Shivaji S/O Bharma Govekar v. the Belagavi District Wholesale

Case brief

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What did the court decide?

Shivaji S/O Bharma Govekar v. the Belagavi District Wholesale

Case brief

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What did the court decide?

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