Dismissed

Smt Bhagya v. Smt Bhanumathi

Karnataka HC27 Mar 2024CRL.P/6443/2018

Case brief

AI extract

What is this about?

Accused in a cheque dishonour complaint challenged rejection of her application under Section 311 Cr.P.C. to summon a complainant's witness not examined at trial. The Court held a left-out listed witness confers no right on the accused to summon him; he may be produced as the accused's own witness. Petition dismissed.

What the court decided

AI extract

Smt Bhagya Vs Smt Bhanumathi — Cheque Dishonour | Karnataka HC (2024)

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1 - NC: 2024:KHC:12798 CRL.P No. 6443 of 2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 27^TH DAY OF MARCH, 2024

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BEFORE

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THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ CRIMINAL PETITION NO. 6443 OF 2018

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BETWEEN:

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SMT. BHAGYA, W/O PUTTASWAMY, AGED ABOUT 47 YEARS, R/AT DEVASTANANGUDDE, SRINGERI POST - 577 139, CHICKMAGALUR DISTRICT.

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…PETITIONER

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(BY SRI. JAGADEESH D.C, ADVOCATE)

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AND:

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Digitally signed by NARAYANAPPA LAKSHMAMMA

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Location: HIGH COURT OF KARNATAKA

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SMT. BHANUMATHI, W/O SRISHAILA, AGED ABOUT 47 YEARS, R/AT SHIVANANDA SADANA, HARIHARA STREET, SRINGERI TOWN - 577 139. …RESPONDENT (BY SRI. RAVISHANKARA S.R, ADVOCATE) THIS CRL.P IS FILED U/S.482 OF CR.P.C PRAYING TO QUASH THE IMPUGNED ORDER DATED 07.06.2018 PASSED IN C.C.NO.166/2012 BY THE LEARNED CIVIL JUDGE AND JMFC, SHRINGERI ON THE APPLICATION FILED BY THE ACCUSED U/S 311 OF CRPC AS THE SAME IS ILLEGAL AND UNSUSTAINABLE IN LAW AND CONSEQUENTLY ALLOW THE SAID APPLICATION FILED BY THE

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NC: 2024:KHC:12798 CRL.P No. 6443 of 2018

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ACCUSED U/S 311 OF CRPC AS PRAYED FOR IN ACCORDANCE WITH LAW.

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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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The petitioner is before this Court seeking for the following reliefs:

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(a) Call for records pertaining to the case on hand from the file of Court below and peruse the same;

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(b) Allow this petition and quash the impugned order dated: 07.06.2018 passed in C.C. No.166/2012 by the Learned Civil Judge and JMFC, Shringeri on the application filed by the Accused U/s 311 of Cr.PC as the same is illegal and unsustainable in law and consequently allow the said application filed by the Accused U/s 311 of Cr.PC as prayed for in accordance with law.

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The respondent/complainant had filed a private complaint in P.C.R.No.5/2012 under Section 200 of Cr.P.C. read with Section 138 of the Negotiable Instrument Act, 1881 (for shot 'NI Act') alleging that the cheque issued by the petitioner accused therein has been dishonoured for insufficient of funds. In the said proceedings, the complainant, having produced a list of witnesses, chose not to examine one Mr.S.Purushotham, who was cited in the witness list.

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3 - NC: 2024:KHC:12798 CRL.P No. 6443 of 2018

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Since the said S.Purushotama was not examined, the petitioner/accused filed an application under Section 311 of the Cr.P.C. requesting the Trail Court to issue summons to S. Purushotama as he is an important witness. The same having been objected to by the respondent, the Trial Court rejected the said application vide order dated 07.06.2018. Challenging the same, the petitioner is before this Court.

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The contention of Sri. D.C.Jagadeesh, learned counsel appearing for the petitioner, is that the complainant herself, having cited S.Purushotam as a witness, it is required for the accused to be provided an opportunity to cross examine the said witness, having been cited as a witness in the witness list, the accused cannot be deprived of such a cross-examination. His submission is that the said S. Purushotama is also an attesting witness to the agreement executed between the petitioner and the respondent. The said attesting witness would have to be examined by the accused.

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NC: 2024:KHC:12798 CRL.P No. 6443 of 2018

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Learned counsel for the respondent would, however, submit that an agreement can be established in the course of evidence by examining one attesting witness, there being two attesting witnesses, one of them is Pushpalatha, who has been examined as P.W.2 and there is no requirement to examine the other attesting witness. One witness being insufficient, the complainant has given up examination of the other attesting witness. She therefore, submits that this fact, which has been taken into consideration by the Trial Court is just and proper and does not require to be interfere with. The petitioner has filed the application only to delay the proceedings and for no other purposes.

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Heard the learned counsel for the petitioner, learned counsel for the respondent and perused papers.

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A short question that would arise for my consideration in the matter is as to whether the accused is entitled to summon a person named in the witness list submitted by the complainant if such a person is not examined as a witness.

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NC: 2024:KHC:12798 CRL.P No. 6443 of 2018

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In any criminal proceeding, including that under Section 138 of NI Act, it is for the prosecution to prove the guilt of the accused beyond reasonable doubt. It is therefore left to the prosecution to examine such witnesses that the prosecution intends to examine to support its case.

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In the present case, the loan agreement is required to be established, one of the attesting witnesses has been examined by the complainant and as such, the other attesting witness has been given up from examination.

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This in my considered opinion, cannot confer any vested right on the accused to call for or summon the witness who has been left out. If at all the accused is of the opinion that the said left out witness will support the case of the accused, it is for the accused to produce such a witness as his own witness and not call on the Court to summon the witness. Thus, I answer the question raised by holding that merely because one of the witnesses named in the witness list has not been examined, the accused will not get the right to summon the said

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6 - NC: 2024:KHC:12798 CRL.P No. 6443 of 2018

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witness, the accused could always produce the left out witness as his or her own witness in the case.

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In view of my answer to the above question, I do not find any infirmity in the impugned order dated 07.06.2018 passed by the Civil Judge and JMFC, Shringeri in C.C.No.166/2012 and as such, the petition stands

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dismissed .

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SD/JUDGE

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GJM List No.: 1 Sl No.: 45

Smt Bhagya v. Smt Bhanumathi

Case brief

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What the court decided

Smt Bhagya v. Smt Bhanumathi

Case brief

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