Dismissed

Sri. Ramanna S/O. Basappa Hallad v. Sri. Suratsait S/O. Umedmalji Oswal

Karnataka HC24 Feb 2021CRL.P/100046/2021

Case brief

AI extract

What is this about?

In a criminal revision petition, the Karnataka High Court dismissed the accused's plea to quash an order rejecting his application to summon the complainant as a witness under Section 311 of Cr.P.C., holding the accused cannot compel production to frame his own case.

What did the court decide?

CRL.P. No. 100046 of 2021 and IA No. 1/2021 were dismissed with no direction to recall the judgment below.

Sri. Ramanna S/O. Basappa Hallad Vs Sri. Suratsait S/O… — Cheque Dishonour | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 24^TH DAY OF FEBRUARY 2021

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BEFORE

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THE HON’BLE MR. JUSTICE P. KRISHNA BHAT

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CRL.P. NO.100046 OF 2021

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BETWEEN:

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SRI. RAMANNA S/O BASAPPA HALLAD AGE:62 YEARS, OCC:BUSINESS/AGRICULTURIST, R/O R.B.G. HIGH SCHOOL LOKAPUR, TQ:MUDHOL, DIST:BAGALKOT-587103.

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…PETITIONER (BY SRI.B.C. JNANAYYA SWAMI, ADV.)

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AND:

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SRI. SURATSAIT S/O UMEDMALJI OSWAL REP. BY ITS P.A. HOLDER SRI. SANTOSH S/O SURATSAIT S/O UMEDMALJI OSWAL, AGE:35 YEARS, OCC:BUSINESS/AGRICULTURIST, R/O LOKAPUR, TQ:MUDHOL, DIST:BAGALKOT-587103.

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…RESPONDENT

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(BY SRI.N.L. BATAKURKI, ADV.)

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THIS PETITION IS FILED UNDER SECTION 482 OF CR.P.C. PRAYING TO QUASH THE IMPUGNED ORDER DATED 1.12.2020 IN CC NO.367/2017 (ARISING OUT OF PC NO.135/2016) FOR THE OFFENCE PUNISHABLE UNDER SECTION 138 OF NI ACT PENDING ON THE FILE OF THE PRL. SENIOR CIVIL JUDGE AND JMFC, MUDHOL IN THE INTEREST OF JUSTICE.

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

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ORDER

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This petition is filed under Section 482 of Cr.P.C. by the accused before the learned Court below in CC No.367/2017 for offence punishable under Section 138 of Negotiable Instruments Act, 1881 (for short, ‘NI Act’).

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The respondent herein presented a private complaint for offence punishable under Section 138 of NI Act against the petitioner herein, which was numbered as CC No.367/2017 on the file of the learned Prl. Senior Civil Judge and JMFC, Mudhol. The complainant presented the said complaint through his son and GPA holder, who was examined as PW1 before the learned Court below. On behalf of the complainant, another witness namely a Bank Manager was examined as PW2. After the evidence was closed and statement of the accused was recorded under Section 313 of Cr.P.C., the accused examined himself as DW1 and also examined another witness as DW2. Thereafter, he filed an application under Section 311 of Cr.P.C. praying to issue witness summons to Sri. Suratset

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S/o Umedmal Oswal, who is the complainant. The

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affidavit filed in support of the said application reads as under:

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Affidavit

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“Herein, I, Ramanna S/o Basappa Hallad, Age:70 years, Occ: Business & Agriculture, R/o Lokapur, Tq: Mudhol, today at Mudhol do hereby state on solemn affirmation as under:

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That I am accused in this case and I know the facts of the case. Complainant has filed the complaint under Section 138 of NI Act.

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Though complainant by all means capable to file complaint and give evidence, but the GPA holder who has filed this complaint contending that complainant has authorized him to file complaint for the offence punishable under Section 138 of NI Act. In fact complainant has not instructed this GPA Holder and not authorized this alleged GPA holder to file the complaint. In fact complainant is dumb and this GPA Holder has taken advantage of the situations of the complainant and accused, has managed to file this false complaint.

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It is the defense accused that complainant is dumb and he cannot speak, but whereas GPA holder of complainant who has been examined as PW1 in his cross-examination at line No.7 falsely

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stated that “complainant is capable of speaking”. Apart from this falsely stated that complainant is suffering from blood pressure; sugar and he is required to take treatment of dialysis, etc. Nowhere in the power of attorney such grounds are mentioned.

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Such being the case in order to elucidate the matte in dispute between the parties and in order to bring the real facts before this Hon’ble Court so as to throw light on the real facts, evidence of complainant is very much essential. In face if after seeing that person court comes to conclusion that the court may appoint court commissioner i.e., any of the lawyer for recording the evidence of complainant or court may appoint advocate for accused to record his evidence at the residence of complainant along with recording the evidence by video. Hence, this affidavit.

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Above contents are read over and explained to me in Kannada, they are true and correct to the best of my knowledge, belief ad information.”

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After hearing, the learned Court below passed

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the order dated 1.12.2020 dismissing the said application.

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The learned counsel for the petitioner/accused submits before me that the complaint was presented by

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the complainant through GPA holder who is his son. He submits that the complainant is fit to appear before the Court and the said aspect has been admitted by PW1 himself that “the complainant is capable of speaking”. He submits that basic case of the petitioner/accused is that he is running a petrol bunk and the GPA holder (PW1) and his brother were working in the said petrol bunk and at that time, he had stolen the cheque belonging to the petitioner and thereafter, he had misused the said cheque which was used for filing the complaint under Section 138 of NI Act in the name of respondent. He further submits that the evidence of PW2 shows that the signature and the handwriting on the cheque regarding name of the payee and the amount are in different handwritings. Therefore, he submits that the evidence of the complainant is very much essential to prove his defence and the learned Court below without appreciating the said aspect has rejected the application.

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Learned counsel for the respondent, per contra, submits that on behalf of the complainant, PW1 and PW2

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have been examined and on behalf of the

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petitioner/accused, the petitioner himself and another witness have been examined as DW1 and DW2 respectively. He submits that the application was filed under Section 311 of Cr.P.C. seeking to summon the complainant without mentioning for what purpose witness is being summoned. He submits that such an application is not maintainable and it is entirely the choice of the complainant to examine himself or whoever he chooses to examine for proving his case before the Court below. His further submission is that it is not open to the accused to summon the complainant as his witness. Therefore, he submits that there is no merit in this petition and it deserves to be dismissed.

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I have given my anxious consideration to the submissions made on either side and I have perused the case papers.

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Records disclose that the respondent has presented a private complaint for offence punishable under Section 138 of NI Act against the petitioner herein

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through his son and GPA holder. During the trial, GPA holder has been examined as PW1 and another witness namely a Bank Manager was examined as PW2. Thereafter, the complainant closed his evidence and statement of the petitioner/accused under Section 313 of Cr.P.C. was recorded. The accused has examined himself as DW1 and he also examined another witness as DW2. It is at that stage, the petitioner has filed this application under Section 311 of Cr.P.C. seeking to summon the complainant himself. The learned Court below in the impugned order has noticed that the application is filed by the petitioner in order to delay the proceedings as the complaint is of the year 2017 and the application is filed on 23.11.2020 under Section 311 of Cr.P.C. There cannot be any dispute about the fact that it is entirely the choice and discretion of the complainant to examine himself as witness and to further choose witnesses whom he wants to examine in support of his case. If he has chosen not to examine himself, it is open to the accused to ask the Court to draw such inference as is legally permissible.

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However, he cannot seek to summon the complainant to examine as a witness in the guise of establishing his case. Under such circumstances, the learned trial Court has rightly disallowed such application. I do not find any error or illegality in the order passed by the learned Court below. In that view of the matter, this petition deserves to be dismissed. Accordingly, I proceed to pass the following:

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ORDER

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a) The above petition is dismissed. b) In view of the above order, IA No.1/2021 is also dismissed as not surviving for consideration.

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JTR

Sri. Ramanna S/O. Basappa Hallad v. Sri. Suratsait S/O. Umedmalji Oswal

Case brief

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Sri. Ramanna S/O. Basappa Hallad v. Sri. Suratsait S/O. Umedmalji Oswal

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