Partly allowed

B M Girish v. Sri Manohar Thadani

Karnataka HC6 Feb 2024CRL.RP/126/2021

Case brief

AI extract

What is this about?

High Court allowed a criminal revision petition filed under S.397/401 CrPC challenging conviction by the Metropolitan Magistrate and confirmation by the Sessions Court. The Court set aside the conviction and remanded the matter to the Trial Court to allow the accused to cross-examine the prosecution witness upon payment of costs.

What did the court decide?

Conviction and sentence set aside; matter remanded to Trial Court to grant accused opportunity to cross-examine PW.1 on payment of Rs.10,000/-.

B M Girish Vs Sri Manohar Thadani — Cheque Dishonour | Karnataka HC (2024)

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NC: 2024:KHC:5014 CRL.RP No. 126 of 2021

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6^TH DAY OF FEBRUARY, 2024 BEFORE

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THE HON'BLE MR JUSTICE S RACHAIAH CRIMINAL REVISION PETITION NO. 126 OF 2021

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BETWEEN:

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Digitally signed by SUDHA S Location: HIGH COURT OF KARNATAKA

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B M GIRISH S/O B.M.VAGEESH SHIVACHARYA AGED 44 YEARS PARTNER, MOKSHA BUILDERS R/AT NO.24, JALANDHARSHINI LAYOUT OFFICE AT NEW B.E.L.ROAD, SANJAYNAGAR, BENGALURU – 560 094.

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…PETITIONER

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(BY SRI. HALASHETTI JAGADISH SIDRAMAPPA, ADVOCATE)

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AND:

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SRI MANOHAR THADANI S/O SRI. FATHACHAND TADANI AGE:69 YEARS R/O AT NO.428/22, ‘A’ SECTOR, 3^RD PHASE, NEW TOWN, YALAHANKA, BENGALURU – 560 064.

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…RESPONDENT

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(BY SRI. RAHUL CARIAPPA K S, ADVOCATE)

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THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C PRAYING TO SET ASIDE THE ORDER OF CONVICTION AND SENTENCE OF COMPENSATION / FINE DATED 08.09.2014 PASSED BY THE XIV ADDITIONAL CHIEF METROPOLITAN MAGISTRATE AT BENGALURU IN C.C.NO.26618/2012, AND ETC.,

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

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NC: 2024:KHC:5014 CRL.RP No. 126 of 2021

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ORDER

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This Criminal Revision Petition is filed by the petitioner / accused, being aggrieved by the judgment of conviction and order of sentence dated 08.09.2014 in C.C.No.26618/2012 on the file of XIV Additional Chief Metropolitan Magistrate, Bangalore and its confirmation judgment and order dated 19.12.2020 in Crl.A.No.25104/2017 on the file of the XXVIII Additional City Civil and Sessions Judge, Mayo Hall Unit, (CCH-29), Bangalore, seeking to set aside the concurrent findings recorded by the Courts below, wherein the petitioner / accused No.2 is convicted for the offence under Section 138 of Negotiable Instruments Act (for short ‘N.I. Act’).

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The rank of the parties in the Trial Court will be considered henceforth for convenience.

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Briefs facts of the case:-

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The accused being the sole and absolute owner in

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possession and enjoyment of the residential apartment bearing No.G-1 measuring 16.50 sq. ft. and another apartment bearing its No.G-2 measuring 850 sq. ft. situated at Nagashettihalli

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3 - NC: 2024:KHC:5014 CRL.RP No. 126 of 2021

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village, Bengaluru North Taluk, along with 387.5 sq.ft. undivided share in the land, has agreed to sell the above said apartments to the complainant for a total sale consideration of Rs.25,00,000/-. An agreement was executed between them and the accused had received Rs.20,00,000/- by way of cash and the balance amount was to be paid at the time of execution of the sale deed. The said sale agreement was registered before the Sub-Registrar, Hebbal, Bengaluru.

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It is further averred in the complaint that the flats which were intended to be sold were under construction and the accused had agreed to complete the construction within six months, however, even after a lapse of one year, it was not completed. Being fed up with the attitude of the accused, the complainant insisted for return of the amount by canceling the sale agreement. The accused issued a post-dated cheque dated 24.10.2011 and asked the complainant to present it for encashment. When it was presented for encashment, the same came to be dishonoured with a shara as ‘funds insufficient’ and the complainant issued a legal notice through RPAD and it was served upon the accused. However, the accused did not reply

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NC: 2024:KHC:5014 CRL.RP No. 126 of 2021

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nor repay the amount. Hence, it is constrained the complainant to file a complaint.

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To prove the case of the complainant, the complainant himself was examined as PW.1 and got marked 8 documents as Exs.P1 to P8. The Trial Court after appreciating the oral and documentary evidence on record, recorded the conviction of the accused and the same has been confirmed by the Appellate Court in the appeal filed by the accused. Hence this revision petition.

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Heard Sri Halashetti Jagadish Sidramappa, learned counsel for the petitioner and Sri Rahul Cariappa K S, learned counsel for the respondent.

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It is the submission of learned counsel for petitioner that the opportunity to cross-examine PW.1, even though available, was not utilized by the accused under some unavoidable circumstances. Unless PW.1 is cross-examined, the truth cannot be unearthed, therefore, opportunity be given to the accused to cross-examine PW.1 to establish his case. Making such submission, learned counsel for petitioner prays to allow the petition and set aside the concurrent findings and

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NC: 2024:KHC:5014 CRL.RP No. 126 of 2021

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prays for an opportunity to be given to the petitioner to crossexamine PW.1.

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Per contra, learned counsel for respondent vehemently justified the concurrent findings and submitted that the transaction is of the year 2009. It is an admitted fact that the accused received Rs.20,00,000/- as part payment and executed the sale agreement. Therefore, it is not appropriate to remand the matter for cross-examination of PW.1.

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It is further submitted that if such an order is passed, the complainant would be prejudiced as he had lost Rs.20,00,000/- by paying the same to the accused in the year 2009. Even though the opportunity to cross-examine PW.1 was given, the accused did not make any efforts to cross-examine PW.1, therefore, it was taken as ‘nil’. Thereafter, the accused did not make any attempt to file the necessary application to recall PW.1 for cross-examination. Such being the fact, it is not necessary to give one more opportunity for cross-examination as the accused admitted the transaction and there is a sale agreement produced and got marked in the present case.

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Making such submission, learned counsel for respondent prays to dismiss the petition.

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After having heard learned counsel for the

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respective parties, it is appropriate to refer to the dates of order sheet of the Trial Court. After filing the complaint, the Trial Court took cognizance and summons were issued to the accused on 22.06.2012. The accused entered appearance and was released on bail on payment of cash security. It is seen from the order sheet that on 17.12.2013, submission was made that accused No.3 died on 11.02.2013 and the Trial Court abated the case against accused No.3. The substantial accusation was recorded on 17.12.2013 against accused No.2. Evidence of PW.1 was recorded on 23.01.2014. Thereafter, the judgment of conviction was passed on 08.09.2014. It appears from the record that several opportunities were given to the accused No.2 to cross-examine PW.1.

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Be that as it may, the learned counsel for the petitioner herein made submission that due to the death of one of the members of the case, the accused No.2 did not choose to cross-examine PW.1 nor instructed his counsel regarding the

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NC: 2024:KHC:5014 CRL.RP No. 126 of 2021

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transaction. Therefore, he prays to give one more opportunity to cross-examine PW.1 on payment of cost.

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Having considered the said submission, in order to sustain natural justice, it is appropriate to set aside the concurrent findings and opportunity needs to be given to the accused / petitioner to cross-examine PW.1 within a stipulated time.

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Hence, I proceed to pass the following:-

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ORDER

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(i) The Criminal Revision Petition is allowed.

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(ii) The judgment of conviction and order of sentence dated 08.09.2014 in C.C.No.26618/2012 on the file of XIV Additional Chief Metropolitan Magistrate, Bangalore and its confirmation judgment and order dated 19.12.2020 in Crl.A.No.25104/2017 on the file of the XXVIII Additional City Civil and Sessions Judge, Mayo Hall Unit, (CCH-29) Bangalore, are set aside.

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(iii) The matter is remanded to the Trial Court with a direction to provide an opportunity to the accused to cross-examine PW.1, on payment of cost of Rs.10,000/- (Rupees Ten Thousand only) payable to the complainant.

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(iv) It is directed the Trial Court to proceed with the case from the stage of cross-examination of PW.1 and other consequential procedures are to be followed in accordance with law.

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(v) The Trial Court shall complete the process and pass the judgment as expeditiously as possible, within a period of not later than six months.

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(vi) The Registry is directed to send the records forthwith to the Trial Court along with a copy of this judgment.

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(vii) It is needless to say, the Trial Court shall pass notice to both parties for their appearance after receipt of the records from this Court.

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(viii) After the appearance of the parties, the accused shall not take any adjournments on extraneous

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NC: 2024:KHC:5014 CRL.RP No. 126 of 2021

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reasons and shall conduct proceedings by assisting the Court regularly.

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Sd/JUDGE

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Bss List No.: 1 Sl No.: 57

B M Girish v. Sri Manohar Thadani

Case brief

What is this about?

What did the court decide?

B M Girish v. Sri Manohar Thadani

Case brief

What is this about?

What did the court decide?

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