Mrs. Bhawani Anand Vs Mr. B.J. Vikas Kumar — Cheque Dishonour | Karnataka HC (2025)

Mrs. Bhawani Anand Vs Mr. B.J. Vikas Kumar — Cheque Dishonour | Karnataka HC (2025)

What the court decided

AI extract

Outcome

Appeal allowed; judgment of acquittal dated 17.12.2012 in C.C.No.35724/2010 set aside; matter remanded to the Trial Court to proceed from the stage of cross-examination of P.W.1; P.W.1 to be present and respondent's counsel to cross-examine her on 03.03.2025; parties directed to appear on 03.03.2025 without awaiting court notice; Registry directed to send trial Court records with copy of the order forthwith.

Issue for consideration

Whether the judgment of acquittal, having been passed only because P.W.1 was not tendered for cross-examination and not on the merits of the complainant's case, should be set aside. +1 more

Court's answer

The impugned judgment of acquittal was passed only on the ground that P.W.1 had not tendered herself for cross-examination, and was not passed on the merits of the complainant's case.

Ratio / Principle

P.W.1's non-appearance for cross-examination on 11.07.2012, 07.08.2012 and 28.08.2012 was attributable to her certified illness, and the absence was for bona fide reasons and not for mala fide reasons.

Key takeaways

Since the judgment of acquittal was not passed on the merits of the complainant's case, the matter required to be remanded by setting aside the impugned judgment of acquittal.ratio¶43

Detailed headnote1 paragraphs

Criminal appeal under S.378(4) Cr.P.C. by the complainant against acquittal of the accused under S.138 N.I. Act (C.C.No.35724/2010, XIV Addl. C.M.M., Bengaluru, judgment dated 17.12.2012). Background: Business Investment Agreement dated 23.05.2007 with Rs.3,00,000 invested; cheque No.929018 dated 12.12.2009 for Rs.3,00,000/- drawn on ICICI Bank, Kammanahalli Branch, dishonoured with reason "Account is Dormant"; legal notice dated 16.01.2010 unanswered. At trial, complainant-P.W.1, whose chief examination was recorded on 07.06.2012, was absent for cross-examination on 11.07.2012, 07.08.2012 and 28.08.2012; her evidence was closed and the accused acquitted solely on that ground, not on merits. Holding: the absence was due to medically certified illness ("Acute Lumbo –Sacral Strain with Sciatica"; certificates dated 07.07.2012, 22.09.2012 and 10.10.2012) and was therefore bona fide; acquittal being off-merits, the High Court allowed the appeal, set aside the acquittal and remanded the matter to resume at P.W.1's cross-examination, fixed for 03.03.2025, with parties to appear without awaiting notice.

1 - NC: 2025:KHC:6270 CRL.A No. 391 of 2013

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 12^TH DAY OF FEBRUARY, 2025

BEFORE

THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR

CRIMINAL APPEAL NO. 391 OF 2013

BETWEEN:

MRS. BHAWANI ANAND W/O MR. G. ANAND AGED ABOUT 29 YEARS PRESENTLY R/AT NO.606, 4TH " C " MAIN, OMBR LAYOUT, OPP. CHAYA HOSPITAL BANASWADI BANGALORE-560 011.

…APPELLANT

(BY SRI. YATHISH KUMAR K.N, ADOVATE FOR SRI DEVARAJ N.,ADVOCATE)

AND:

Digitally signed by HEMAVATHY GANGABYRAPPA Location: HIGH COURT OF KARNATAKA

MR. B.J. VIKAS KUMAR S/O B. JAI KUMAR AGED ABOUT 44 YEARS C/O MS/ VINOD AUTO SERVICES NO.1, WHEELER ROAD, FRAZER TOWN, BANGALORE

…RESPONDENT (BY SRI. THARANATH SHETTY.,ADVOCATE) THIS CRL.A. IS FILED U/S. 378(4) CR.P.C PRAYING TO SET ASIDE THE ORDER DATED:17.12.12 PASSED BY THE XIV ADDL. C.M.M., BANGALORE IN C.C.NO.35724/2010 - ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE P/U/S 138 OF N.I. ACT.

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

CORAM: HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR

ORAL JUDGMENT

This appeal is filed by the complainant challenging the judgment of acquittal dated 17.12.2012 passed in C.C.No.35724/2010 by the XIV Additional Chief Metropolitan Magistrate, Bengaluru, whereunder the respondent - accused has been acquitted for offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'N.I. Act' for brevity).

The case of the appellant - complainant in brief, is as under:

The respondent –accused has entered into Business investment Agreement dated 23.05.2007 and the appellant –complainant invested Rs.3,00,000/paid through cheque to the respondent –accused. The respondent –accuse assured to pay profit of Rs.15,000/-

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every month for five months till the date of renewal of the agreement. But the respondent –accused has not paid the profit as agreed by him for more than 28 months and therefore, the appellant –complainant approached the respondent –accused and the respondent –accused postponed to pay the profit amount. The appellant – complainant recall the guarantee and presented the cheque issued by the respondent-accused bearing No.929018 dated 12.12.2009 for Rs.3,00,000/- drawn on ICICI Bank, Kammanahalli Branch Bengaluru. The appellant –complainant presented the said cheque for encashment and the said cheque came to be dishonoured for reason “Account is Dormant”. The appellant - complainant got issued legal notice on 16.01.2010. Inspite of service of notice the respondent –accused did not pay the cheque amount. Therefore, the complainant has filed a private complaint against the respondent - accused for offence punishable under Section 138 of the NI Act.

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Learned Magistrate has taken cognizance

against the respondent –accused and registered case in C.C.No.35724/2010 for offence punishable under Section 138 of the N.I Act. The plea of respondent - accused has been recorded. The complainant in order to prove her case has examined herself as P.W.1 and got marked documents as Ex.P1 to P10. P.W.1 has not tendered herself for cross examination and same was noted in the order sheet dated 28.08.2012 and the case has been posted for recording of the statement under Section 313 of Cr.P.C. The statement of respondent -accused came to be recorded under Section 313 of Cr.P.C. Learned Magistrate after hearing arguments on both sides has formulated points for consideration and passed impugned judgment of acquittal. The said judgment of acquittal has been challenged by the complainant in this appeal.

Heard learned counsel for the appellant and

learned counsel for the respondent.

Learned counsel for the appellant would

contend that after chief examination of P.W.1 which is

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recorded on 07.06.2012, P.W.1 due to her ill-health has not attended the Court on subsequent dates of hearing. Therefore, there is reason for the appellant –complainant for absence on the dates on which case is posted for her cross examination. The appellant –complainant has produced medical certificate along with appeal memo. The judgment of acquittal is passed only on the ground that P.W.1 has not tendered for cross examination and she has not proved her case. With these, he prayed to allow the appeal.

Learned counsel for the respondent –accused would contend that inspite of granting sufficient time P.W.1 has not tendered herself for cross examination and considering the same learned Magistrate has recorded the same and proceeded with the matter. The counsel for the complainant was not diligent in the trial Court and also not diligent before this Court. He ought to have sought for remand of the matter at the time of admission itself. With this, he prays for dismissal of the appeal.

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Having heard learned counsel, this Court has

perused the impugned judgment and trial Court records.

The appellant is complainant and respondent is

accused before the trial Court. The complainant in order to prove her case has got examined herself as P.W.1 and her chief examination has been recorded on 07.06.2012. The

case has been posted for cross examination of P.W.1 on 11.07.2012, 07.08.2012 and 28.08.2012. On all those three dates P.W.1 was not kept present for cross examination. Learned Magistrate noting the same has closed the evidence of P.W.1 stating that she was not tendered for cross examination. Thereafter, recorded the statement of accused under Section 313 of Cr.P.C and proceeded with matter and passed impugned judgment of acquittal on the ground that P.W.1 has not tendered for cross examination. The judgment of acquittal has not been passed on merits of the case. The appellant –complainant has produced medical certificate issued by Orthopedic Clinic dated 07.07.2012 which indicate that she was suffering from “Acute Lumbo –Sacral Strain with Sciatica”.

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The appellant –complainant has also produced medical certificates dated 22.09.2012 and 10.10.2012. As the appellant –complainant was suffering the above noted illness, she was not present for cross examination on 11.07.2012, 07.08.2012, 28.08.2012. The absence of the P.W.1 before the trial Court is not for malafid e reasons but

it is for bonafide reasons. As the judgment of acquittal is not passed on the merits of the complainant’s case, the matter requires to be remanded by setting aside the impugned judgment of acquittal.

In the result, the following

ORDER

i. The appeal is allowed. ii. The judgment of acquittal dated 17.12.2012 passed in C.C.No.35724/2010 by the XIV Additional Chief Metropolitan Magistrate, Bengaluru is set aside.

iii. The matter is remanded to the Trial Court for proceeding with the matter from the stage of cross examination of P.W.1.

8 -

NC: 2025:KHC:6270 CRL.A No. 391 of 2013

iv. P.W.1 shall be kept present before the

trial Court on 03.03.2025 and learned

counsel for the respondent –accused shall

cross examine the P.W.1 on that day.

v. Parties are directed to appear before the

trial Court on 03.03.2025 without

awaiting the Court notice.

vi. Registry is directed to send trail Court records along with copy of this order to

the concerned trial Court forthwith.

Sd/-

(SHIVASHANKAR AMARANNAVAR) JUDGE

DSP

List No.: 1 Sl No.: 19

Procedural history

How this case reached the court

AI extract

Order under challenge
Judgment of acquittal of the respondent/accused for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881, in C.C.No.35724/2010.¶19
XIV Additional Chief Metropolitan Magistrate, Bengaluru · 17.12.2012
Prior proceeding
Respondent-accused entered into a Business Investment Agreement dated 23.05.2007 with the appellant-complainant, who invested Rs.3,00,000 through cheque; the accused assured payment of profit of Rs.15,000/- every month.¶21
Prior proceeding
The accused did not pay the agreed profit for more than 28 months; the complainant recalled the guarantee and presented cheque No.929018 dated 12.12.2009 for Rs.3,00,000/- drawn on ICICI Bank, Kammanahalli Branch, Bengaluru.¶23
Prior proceeding
The cheque was dishonoured for the reason "Account is Dormant"; the complainant issued legal notice on 16.01.2010; the accused did not pay despite notice; a private complaint was filed under Section 138 of the NI Act.¶23
Prior proceeding
The learned Magistrate took cognizance against the respondent-accused and registered the case in C.C.No.35724/2010 for offence punishable under Section 138 of the N.I Act.¶27
Prior proceeding
At trial the complainant examined herself as P.W.1 with documents Ex.P1 to P10 marked; her chief examination was recorded on 07.06.2012 and the case was posted for her cross-examination on 11.07.2012, 07.08.2012 and 28.08.2012, on all of which she was not present.¶40
Prior proceeding
The learned Magistrate closed the evidence of P.W.1 as she was not tendered for cross-examination, thereafter recorded the statement of the accused under Section 313 Cr.P.C, and passed the acquittal judgment on that ground rather than on merits.¶40
Prior proceeding
The complainant produced a medical certificate issued by Orthopedic Clinic dated 07.07.2012 indicating she suffered from "Acute Lumbo –Sacral Strain with Sciatica", and also produced medical certificates dated 22.09.2012 and 10.10.2012.¶40