Allowed

M.N. Umesh v. Mahesh H

Karnataka HC11 Jan 2024CRL.P/13874/2023

Case brief

AI extract

What is this about?

Accused in a 2008 cheque dishonour trial challenged rejection of his Section 311 Cr.P.C. application to recall himself as DW-1 and lead further examination-in-chief after documents from the bank were unavailable. The High Court set aside the order, allowed further examination-in-chief with cross-examination, and directed day-to-day disposal.

What did the court decide?

Petition allowed; Section 311 application allowed; accused permitted further examination-in-chief and marking of documents; complainant may cross-examine DW-1; day-to-day disposal directed.

M.N. Umesh Vs Mahesh H — Cheque Dishonour | Karnataka HC (2024)

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1 - NC: 2024:KHC:1440 CRL.P No. 13874 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 11^TH DAY OF JANUARY, 2024

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BEFORE

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THE HON'BLE MR JUSTICE K.NATARAJAN CRIMINAL PETITION NO. 13874 OF 2023

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BETWEEN:

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M.N. UMESH, S/O LATE NANJUNDAPPA, AGED ABOUT 59 YEARS, AGRICULTURIST, R/O CHINMAY NIVASA, KUNDURU, DEVARAYAPATNA POST, TUMAKURU - 572 104. …PETITIONER

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(BY SRI. S.V. PRAKASH, ADVOCATE)

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AND:

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MAHESH H., S/O HANUMAPPA, Digitally signed by SUCHITRA M J AGED ABOUT 63 YEARS, Location: High Court of PROPRIETOR, Karnataka JOHN DEERE, M.S. FARM EQUIPMENTS, NO.M5, BEHIND KSFC INDUSTRIAL ESTATE, B.H. ROAD, TUMAKURU - 572 102. …RESPONDENT (BY SRI. H.L. JAYARAMU, ADVOCATE)

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2 - NC: 2024:KHC:1440 CRL.P No. 13874 of 2023

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THIS CRL.P IS FILED U/S 482 OF CR.PC PRAYING TO 1) SET ASIDE THE ORDER DATED 15.12.2023 PASSED BY THE COURT OF LEARNED III ADDITIONAL CIVIL JUDGE AND JMFC, TUMAKURU IN C.C.NO.591/2008 THEREBY REJECTING THE APPLICATION MADE BY THE PETITIONER IN TERMS OF SEC. 311 OF CR.P.C. 1973 SEEKING TO RECALL THE ORDER DATED 13.10.2023 AND PERMIT THE PETITIONER TO LEAD HIS FURTHER EVIDENCE.

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

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ORDER

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This petition is filed by the petitioner - accused under Section 482 of the Cr.P.C. for dismissing the application under Section 311 of the Cr.P.C, filed by the petitioner for the purpose of leading further cross examination in chief.

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Heard the arguments of the learned counsel appearing for the petitioner and learned counsel appearing for the respondent.

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The case of the petitioner is that the petitioner is facing the trial for offences punishable under Section 138 read with 142 of the Negotiable Instruments Act, 1881 in C.C.No.591/2008. The respondent examined the witnesses.

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3 - NC: 2024:KHC:1440 CRL.P No. 13874 of 2023

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Subsequently, statement was recorded under Section 313 Cr.P.C. Thereafter, case was posted for defense evidence. The accused has led defense evidence as DW-1 and further examination-in-chief was deferred on 16.06.2016 for want of documents. It is submitted that subsequently the petitioner moved an application under Section 91 of the Cr.P.C. for summoning the documents from the Karnataka Bank and Manger is said to be appeared and informed the Court that the documents are not available, since it is more than 10 years old document. Subsequently, the matter went on up to 2023, the petitioner once again filed application for recalling himself as witness for the purpose of leading further examination-in-chief, which came to be rejected. Hence, the petitioner is before this Court.

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Having heard the arguments and perusal of records, which reveals that the matter is pertaining to the year 2008, more than 13 years old case. The matter requires to be disposed of as early as possible, as per the direction of the Hon'ble Supreme Court, as well as the direction of this Court. However, the matter went on delayed due to various reasons for non production of documents by the Bank and

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4 - NC: 2024:KHC:1440 CRL.P No. 13874 of 2023

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subsequently, the case was adjourned for arguments. While looking to the order of the learned Magistrate dated 11.09.2019 reveals that the petitioner has filed an application under Section 91 of the Cr.P.C., which came to be allowed. However, the accused witness failed to comply the order of the Court. Therefore, the case was posted for arguments. However, the trial Court not given any opportunity for the petitioner to lead further examination-in-chief and not allowed the respondent - complainant to cross examine the DW-1. Such being the case, the trial Court ought to have allowed the application under Section 311 of the Cr.P.C. for leading further examination-inchief of DW-1/accused and would have permitted the learned counsel appearing for the complainant to cross examine the DW-1.

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Accordingly, the Trial Court without giving

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opportunity, closing the matter by posting for arguments is not correct. Hence, the order is set aside.

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For the aforesaid reasons, I pass the following:

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ORDER

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I. The criminal petition is allowed.

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5 - NC: 2024:KHC:1440 CRL.P No. 13874 of 2023

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II. The application under Section 311 of the Cr.P.C. filed by the petitioner-accused is allowed.

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III. The accused is permitted to lead further examination-in-chief by marking the documents and the complainant is permitted to crossexamine the DW-1.

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IV. It is needless to observe that the matter should be taken day to day basis and dispose of the matter, as early as possible, as it is one of the oldest case.

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Sd/JUDGE

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JY List No.: 1 Sl No.: 4 CT:SNN

M.N. Umesh v. Mahesh H

Case brief

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M.N. Umesh v. Mahesh H

Case brief

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