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Sri M v. Vijay v Sri Avinash

Karnataka HC12 Aug 2022CRL.RP/718/2022

Case brief

AI extract

What is this about?

The High Court of Karnataka disposed of a criminal revision petition seeking to set aside an order of remand and confirming the Sessions Court's judgment. The Court held the appeal judgment was correct, remanding the case to lead evidence and imposing a fine on the accused.

What did the court decide?

Criminal Revision Petition disposed of by confirming the impugned order of the Sessions Court upholding the conviction and remand, with cost of Rs. 40,000 imposed on the accused.

Sri M v Vijay Vs Sri Avinash — Cheque Dishonour | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 12^th DAY OF AUGUST 2022

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BEFORE

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THE HON’BLE MR. JUSTICE MOHAMMAD NAWAZ

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CRIMINAL REVISION PETITION NO.718 of 2022

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BETWEEN:

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SRI. M.V.VIJAY S/O M.K.VITTAL GOWDA AGED ABOUT 52 YEARS R/O MAGAJAHALLI VILLAGE, HANUBALU HOBLI, SAKALESHAPURA TALUK HASSAN DISTRICT-572321

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… PETITIONER

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(BY SRI.PRAMOD NAIR, SENIOR ADVOCATE FOR SRI. MOHAN P.S., ADVOCATES)

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AND:

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SRI. AVINASH AGED ABOUT 35 YEARS R/O NO.81, BASAVANA GUDI, ACHANAHALLI VILLAGE, HANUBALU HOBLI, SAKALESHAPURA TALUK HASSAN DISTRICT-572321

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… RESPONDENT

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(BY SRI. PRAKASH M.H, ADVOCATE)

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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 AND ORDER OF REMAND IN

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CRL.A.NO.14/2019 ON THE COURT OF THE V ADDL. DISTRICT AND SESSIONS JUDGE, HASSAN DATED 17.02.2022 AND CONFIRM THE ORDER OF CONVICTION PASSED IN C.C.NO.315/2017 ON THE COURT OF CIVIL JUDGE AND JMFC, SAKALESHPURA AND ETC.,

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THIS CRIMINAL REVISION PETITION IS COMING ON FOR ADMISSION THROUGH VIDEO CONFERENCE/PHYSICAL HEARING, THIS DAY, THE COURT MADE THE FOLLOWING;

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ORDER

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The complainant is before this Court praying to set aside the judgment and order dated 17.02.2022 passed in Criminal Appeal No.14/2019 by the Court of V Addl. District & Sessions Judge, Hassan and to confirm the judgment and order of conviction and sentence dated 28.12.2018 passed against the respondent by the Court of Civil Judge and JMFC, Sakleshpur in CC No.315/2017.

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Brief facts leading to the presentation of this

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revision petition are as under:

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In respect of a cheque bearing No.723811 dated 02.01.2017 drawn on Karnataka Bank, Hanbal Branch, alleged to have been issued by the accused for a sum of Rs.15,00,000/-, which was dishonored when it was

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presented to the bank for funds insufficient, a compliant was filed against him for an offence punishable under Section 138 of N.I Act.

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The learned Magistrate vide impugned order dated 28.12.2018 passed in CC No.315/2017 was pleased to convict the accused and sentenced him to pay a fine of Rs.15,85,000/- in default of payment of fine, to

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undergo SI for six months. The said order was challenged by way of an appeal by the accused before the Sessions Court and the learned Sessions Judge, vide impugned judgment dated 17.02.2022 passed in Criminal Appeal No.14/2019 was pleased to set aside the judgment of conviction and sentence passed by the Trial Court and remitted back the matter with a direction to give an opportunity to the accused to lead defence evidence and dispose of the matter afresh within six months from the date of receipt of the order.

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The instant revision petition is preferred assailing the order of the Sessions Court on the ground

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that the accused did not turn up for leading evidence in spite of giving him sufficient opportunities and therefore the trial Court was justified in closing his side of evidence and there is no illegality committed.

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It is contended by the learned counsel for the revision petitioner that five times the accused was given the opportunity to lead his evidence and inspite of that, he failed to adduce any evidence and therefore, the Appellate Court was not proper in remanding the matter to the trial Court to lead defence evidence. He submits that the only intention of the accused is to prolong the matter and therefore seeks to set aside the impugned order passed by the learned Sessions Court.

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The appellate Court has taken into consideration that after recording the statement of the accused under Section 313 Cr.P.C, explaining the incriminating evidence available against him, wherein accused denied the same, instead of posting the case for defence evidence to give an opportunity for the accused

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to lead evidence, case was directly posted for arguments. Noting down the controversial facts pleaded by the parties, the Appellate Court was of the view that the trial Court ought to have given an opportunity for the accused to lead defence evidence after recording 313 statement.

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A perusal of the order sheet of the trial Court

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would disclose that on 17.09.2018 the statement of the accused was recorded under Section 313 of the Cr.P.C., by explaining the incriminating evidence appeared against him. Thereafter, on 24.09.2018, when the case was listed for defence evidence, the accused remained absent and exemption application was filed. The complainant was present on that day. Thereafter, even on 29.09.2018 the accused was absent. On 01.10.2018, when the case was listed, the accused was present but he did not lead any defence evidence and the case was listed on 03.10.2018. The accused filed an application under 311 of Cr.P.C, which was dismissed by the trial

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Court. Again on 10.10.2018 and 15.10.2018 though the case was listed for recording defence evidence, the accused remained absent. Hence, it is clearly seen that sufficient opportunity was given to the accused but he failed to lead defence evidence.

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The learned counsel for respondent submits

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that since the cheque amount is huge and the accused has got defence evidence to lead, he may be given an opportunity to lead defence evidence by imposing reasonable cost.

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Considering the entire facts and

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circumstances of the case and also considering that the matter has been remitted back to the trial Court giving opportunity to the accused to lead defence evidence and to dispose of the matter within the stipulated time, I am of the view that the revision petition can be disposed of confirming the order passed by the Appellate Court by imposing a cost of `40,000/- (Rupees Forty Thousand only) on the accused which shall be paid by him to the

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complainant on the next date of hearing fixed before the trial Court.

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The Registry shall send back the records to the trial

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Court forthwith.

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The learned Magistrate shall make all endeavour to dispose of the case within a period of three months from the date of receipt of copy of the order.

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Revision petition is disposed of.

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Sd/JUDGE

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VS/HB

Sri M v. Vijay v Sri Avinash

Case brief

What is this about?

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Sri M v. Vijay v Sri Avinash

Case brief

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