Allowed

Sri N Krishna Murthy v. Sri D S Siddaraju

Karnataka HC20 Mar 2024CRL.P/5813/2018

Case brief

AI extract

What is this about?

Accused in a cheque dishonour case sought recall of PW2 for cross-examination after it was taken as nil due to witness absence and complainant's non-diligence. Finding injustice would result, the High Court allowed the petition, set aside the trial court order permitting cross-examination on penalty of forfeiting the benefit if not exercised next date.

What did the court decide?

Order dated 19.07.2018 set aside; application under Section 311 allowed; petitioner permitted to cross-examine PW2 on next date of his presence.

Sri N Krishna Murthy Vs Sri D S Siddaraju — Cheque Dishonour | Karnataka HC (2024)

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1 - NC: 2024:KHC:11688 CRL.P No. 5813 of 2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 20^TH DAY OF MARCH, 2024

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BEFORE

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THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ CRIMINAL PETITION NO.5813 OF 2018

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BETWEEN:

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SRI N. KRISHNA MURTHY, S/O LATE NARAYANA, AGED ABOUT 47 YEARS, PRESIDENT, M/S SIGANDUR EDUCATIONAL TRUST, ULLUR, ULLUR POST, SAGAR TALUQ, SHIMOGA DISTRICT - 577 401.

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AND ALSO AT. R/AT NO. 205, 6TH MAIN 27TH CROSS, 3RD BLOCK OPP KARNATAKA BANK ATM JAYANAGAR, BANGALORE - 560 011.

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Digitally signed by NARAYANAPPA LAKSHMAMMA Location: HIGH COURT OF KARNATAKA

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(BY SRI. RAJASHEKARA R V.,ADVOCATE)

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AND:

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…PETITIONER

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SRI D. S. SIDDARAJU AGED ABOUT 51 YEARS, S/O SRI. CHOODEGOWDA, R/AT NO. 1642/2, KRISHNARSHITA NILAYA PATEL LAYOUT DOWN, OPP CANARA BANK ATM, BEGUR MAIN ROAD, BANGALORE SOUTH TALUK,

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2 - NC: 2024:KHC:11688 CRL.P No. 5813 of 2018

BANGALORE - 560 068.

…RESPONDENT

(RESPONDENT SERVED)

THIS CRL.P IS FILED U/S.482 CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 19.07.2018, AND PERMIT HIM TO CROSS EXAMINATION PW-2, WITNESS PASSED IN C.C.NO.3776/2018 ON THE FILE OF THE LEARNED XIX ACMM, AT BANGALORE CITY. THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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1. The petitioner is before this Court seeking for following reliefs:

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“WHEREFORE, the petitioner most humbly prays that this Hon'ble Court may kindly be pleased to:-

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1. Call for the relevant records:

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2. Set aside the order dated 19-07-2018 and permit him to Cross Examination PW-2, witness passed in CC No.3776/2018 on the file of the learned XIX addl Chief Metropolitan Magistrate, Bangaluru city, Bangalore.

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3. Pass such other order or orders as deemed fit in the circumstances of the case, in the interest of justice and equity.”

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Respondent though served has not entered

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appearance.

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3 - NC: 2024:KHC:11688 CRL.P No. 5813 of 2018

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Respondent had filed a complaint under Section 200 of Cr.P.C r/w 138 of Negotiable Instruments Act (for short “N.I” Act) for dishonor of a cheque which is now pending in C.C. No.3776/2018. The petitioner not having cross examined PW2, his cross examination was taken as nil vide order dated 21.11.2017 challenging the said order the petitioner is before this Court.

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Notice having been issued to respondentcomplainant though the complaint has been served none has entered appearance for the respondent.

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Learned counsel for the petitioner submits that the petitioner-accused was present on all most all the dates, it is PW2 who was absent and there is no representation on part of the complainant on the concerned date i.e., 21.11.2017, the cross examination of the PW2 was taken as nil.

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NC: 2024:KHC:11688 CRL.P No. 5813 of 2018

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Taking note of the absence of the PW2 his cross examination was taken as nil and the matter proceeded for further evidence, which was also taken as nil on 12.08.2017 and matter proceeded with on 07.10.2017. The aforesaid order was recalled and witnesses of the petitioner was permitted to lead evidence.

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A memo was filed on 21.11.2017 that the complainant will not examine any other witness except PW2. Thereafter, the matter was adjourned due to the absence of the learned counsel for the complainant and subsequently taking note of the fact that the accused was absent on 03.04.2018 NBW was issued, cross examination of PW2 had been taken as nil on 21.11.2017 and matter was posted to the defendant request on 30.11.2017.

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Thereafter, an application came to be filed by the petitioner on 10.07.2017 for recalling of PW2, which came to be rejected by the impugned order dated

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5 - NC: 2024:KHC:11688 CRL.P No. 5813 of 2018

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19.07.2018. Submission of the learned counsel for

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the petitioner-accused before the trial Court is that except for two or three dates, the accused has been diligent in the matter.It is PW2 who was not present and the prosecution by the complainant was not diligent which has delayed the matter.

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The accused has nothing to do with the said delay, except two or three dates on which the accused was not present. On this ground he submits that the above petition is required to be allowed. Allowing the application under Section 311 and permitting the petitioner to cross examine PW2 with necessary by imposing such condition by this Court.

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The submissions made by the learned counsel for the petitioner are borne out by the order sheet which has been produced along with the above petition. It indicates and establishes that PW2 was absent on most of the dates and it is only an application filed by complainant that PW2 was recalled and thereafter

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6 - NC: 2024:KHC:11688 CRL.P No. 5813 of 2018

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again PW2 remained absent. The PW2 being present on 21.11.2017 his cross examination was taken as nil and the matter proceeded.

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What is required to be seen is the conduct of the petitioner from the date PW2 was recalled to the date on which his cross examination was taken as nil. As aforesaid PW2 was recalled on 07.10.2017 and a memo was filed on 21.11.2017 that, apart from PW2 the complainant did not intend to examined any other witnesses. Surprisingly it is on the very same day that the cross examination of PW2 was taken as nil when the matter was posted for the examination of the all the witnesses and not for cross examination.

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In view of the above, I am of the considered opinion that injustice would be caused to the petitioner if the petitioner is not permitted to cross examine PW2 more so when the proceedings under 138 of N.I Act

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NC: 2024:KHC:11688 CRL.P No. 5813 of 2018

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are quasi criminal in nature. Hence, I pass the following:

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:: ORDER ::

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i. Petition is allowed.

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ii. The order dated 19.07.2018 passed in C.C No.3776/2018 on the file of XIX Addl. Chief Metropolitan Magistrate, Bengaluru city, Bengaluru is set aside, consequently the application filed under Section 311 by the petitioner-accused on 10.07.2018 is allowed.

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iii. The petitioner is permitted to cross examine PW2 on the next date when PW2 is present, in the event of the petitioner not cross examining PW2 on the next date, the petitioner would lose the benefit of this order.

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Sd/JUDGE

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AT/ List No.: 1 Sl No.: 49

Sri N Krishna Murthy v. Sri D S Siddaraju

Case brief

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Sri N Krishna Murthy v. Sri D S Siddaraju

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