M/S Zuari Agri Chemicals Limited Vs M/S Bhagyavathi Agro Agencies and Anr.

M/S ZUARI AGRI CHEMICALS LIMITED, REGISTERED OFFICE AT JAIKISAN BHAVAN, ZUARI NAGAR, GOA- 403726 AND HAVING ITS, REGIONAL OFFICE AT RAICHUR, REPRESENTED HEREIN BY ITS, AUTHORIZED OFFICER, VINOD PATIL S/O GOVINDRAO PATIL, AGE: 33 YEARS, R/O. TALUKA BHALKI, SAIGAON BIDAR.

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Digitally signed by RENUKA Location: HIGH COURT OF KARNATAKA

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(BY SRI. SHIVANAND PATIL, ADVOCATE)

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AND:

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…APPELLANT

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M/S BHAGYAVANTHI AGRO AGENCIES, OPP. BUS STAND CHOWDAPUR, TQ. AFZALPUR, DIST. KALABURAGI-585301.

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DATTANNA S/O SHIVANNA KUMBA, PROPRIETOR M/S BHAGYAVANTHI AGRO AGENCIES, OPP. BUS STAND CHOWDAPUR, TQ. AFZALPUR, DIST. KALABURAGI-585301.

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…RESPONDENTS

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(BY SRI N.B. DIWANJI, ADVOCATE FOR R1 AND R2)

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2 - NC: 2025:KHC-K:3320 CRL.A No. 200008 of 2024

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HC-KAR

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THIS CRL.A. IS FILED UNDER SECTION 378 (4) OF CR.P.C PRAYING TO ADMIT THE APPEAL AND SET ASIDE THE ORDER DATED 01.09.2023 IN CC NO.1101/2020 OF THE PRL.CIVIL JUDGE AND JMFC-II RAICHUR AND REMAND THE MATTER TO THE COURT BELOW PROVIDING AN OPPORTUNITY TO THE APPELLANT TO ADDUCE HIS EVIDENCE AND PROSECUTE THE MATTER.

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THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE V SRISHANANDA

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ORAL JUDGMENT

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(PER: HON'BLE MR. JUSTICE V SRISHANANDA)

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Heard Sri. Varun Patil, learned counsel for the

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appellant and Sri. N.B.Diwanji, learned counsel for the respondent Nos.1 and 2.

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The present appeal is filed by the complainant challenging the order of acquittal passed by the trial Magistrate for acquitting the accused for want of presence of the complainant for cross examination in C.C.No.1101/2020.

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Facts in the nutshell which are utmost necessary are as under:

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3 - NC: 2025:KHC-K:3320 CRL.A No. 200008 of 2024

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HC-KAR

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3.1. A cheque towards discharge of the amount in a

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sum of Rs.1,14,34,498.91 came to be dishonoured and a criminal prosecution was launched.

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3.2. Learned trial Magistrate without following the procedure contemplated in the Judgment of Hon’ble Apex Court in the case of Indian Bank of Association and others Vs. Union of India and others, reported in (2014) 5 SCC 590, commenced the trial with the complainant evidence which is impermissible.

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If the application under Section 145(2) has been filed by the accused, there must have been order passed by the learned trial Magistrate on the said application and thereafter directed the complainant to subject himself for the cross-examination after finding that there is a valid defence to be put across in the cross examination of the complainant.

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Instead of following such a procedure, the trial Magistrate has found that the complainant was not available for the cross-examination and therefore adverse inference came to be drawn and complaint came to be dismissed which

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4 -

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NC: 2025:KHC-K:3320 CRL.A No. 200008 of 2024

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HC-KAR

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is impermissible having regard to the procedure contemplated under the provisions of Section 138 of Negotiable Instrument Act, which is a stand alone statute.

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Accordingly, the order of acquittal is hereby set aside. Having said so, since there is a procedure lapses committed by the trial Magistrate and no rights of the parties are properly adjudicated, the matter requires to be reconsidered by the trial Magistrate in accordance with law strictly following the legal principles enunciated in the Indian Bank of Association (supra). Accordingly, the following order:

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ORDER

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(i) The appeal is allowed;

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(ii) The impugned Judgment passed in C.C.No.1101/2020 by the Principal Civil Judge and JMFC Court-II, Raichur, is hereby set aside;

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(iii) Matter is remitted to the trial Magistrate for fresh disposal in accordance with law;

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