Dismissed¶48

Smt Rashmi B C v. Sri M v Venkatesh

Karnataka HC11 Mar 2025CRL.P/9067/2021

Case brief

AI extract

What is this about?

High Court of Karnataka, Bengaluru; CRL.P No. 9067 of 2021; Mohammad Nawaz J; decided 11.03.2025; S.482 Cr.P.C. petition dismissed; refusal of S.311 Cr.P.C. recall/further cross-examination of PW1 upheld; S.138 NI Act cheque complaint C.C.No.9793/2018; cheques of Rs.4,00,000/- each, hand loan Rs.12,00,000/-; COVID-19 adjournment plea rejected; repeated recall applications treated as delay tactics.

What did the court decide?

The reasons assigned by the learned Magistrate for rejecting the petitioner/accused's Section 311 Cr.P.C. application cannot be said to be illegal or erroneous; several opportunities were given to the defence to further cross-examine PW1/complainant; only on one occasion, due to the COVID situation, was the case adjourned, and subsequent recall applications were allowed but the accused failed to cross-examine him.

Smt Rashmi B C Vs Sri M v Venkatesh — Cheque Dishonour | Karnataka HC (2025)

What the court decided

AI extract

Outcome

Dismissed

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Issue for consideration

Whether the order dated 30.10.2021 passed by the 18th ACMM at Bengaluru in C.C.No.9793/2018 rejecting the accused's Section 311 Cr.P.C. application should be set aside. +1 more

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Court's answer

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Ratio / Principle

The reasons assigned by the learned Magistrate to reject the application under Section 311 Cr.P.C. are just and proper; there are no grounds to interfere with the impugned order passed by the trial Court; hence the petition is dismissed.

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Detailed headnote1 paragraphs

Criminal petition under S.482 Cr.P.C. by the accused (Smt. Rashmi B.C.) praying to set aside the order dated 30.10.2021 of the XVIII ACMM, Bengaluru in C.C.No.9793/2018, whereby her application under S.311 Cr.P.C. - recorded as the fourth such application - for recall and further cross-examination of PW1 (the complainant) was rejected with cost of Rs.1,000/-. The underlying case is a prosecution under S.138 N.I. Act concerning three cheques of Rs.4,00,000/- each (totalling Rs.12,00,000/-) allegedly issued towards a cash hand loan. Counsel contended that COVID-19 SOP restrictions as on 2.9.2021 prevented the petitioner from meeting her advocate and entering the Court campus. The impugned order's record shows PW1 was cross-examined piecemeal during 2019-2020; earlier recall applications were allowed on costs (Rs.500/-, Rs.2,000/-), yet cross-examination was never completed, six hearing dates having been afforded. The High Court (Mohammad Nawaz, J.; order reserved 07.03.2025, pronounced 11.03.2025) held the Magistrate's reasons neither illegal nor erroneous but just and proper, found no grounds to interfere, and dismissed the petition.

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1 - NC: 2025:KHC:10179 CRL.P No. 9067 of 2021

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 11^TH DAY OF MARCH, 2025

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BEFORE

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THE HON'BLE MR JUSTICE MOHAMMAD NAWAZ CRIMINAL PETITION NO. 9067 OF 2021 (482(Cr.PC) /

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528(BNSS))

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BETWEEN:

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SMT. RASHMI B.C. W/O ANAND B.R. AGED ABOUT 42 YEARS, R/AT NO.129/1, BYATARAYANAPURA, DODDAMMA MAHESHWARAPPA ROAD, BYATARAYANAPURA, BENGALURU-560 092.

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…PETITIONER

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(BY SRI. NATARAJA H.C., ADVOCATE)

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AND:

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Digitally signed by LAKSHMI T Location: High Court of Karnataka

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SRI. M.V. VENKATESH S/O LATE M. VENKATARAMANAPPA, AGED ABOUT 54 YEARS, R/AT NO.17, 2^ND CROSS, GANGAPPA BLOCK, GANGANAGAR, BANGALORE-560 032.

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…RESPONDENT

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THIS CRL.P IS FILED U/S.482 CR.P.C PRAYING TO SETASIDE THE ORDER DATED 30.10.2021 PASSED BY THE 18^TH ACMM AT BENGALURU IN C.C.NO.9793/2018 AS PER ANNEXURE-A, CONSEQUENTLY BY ALLOWING THE 311 OF CR.P.C. APPLICATION DATED 14.09.2021 AND PERMIT THE ACCUSED FOR FURTHER CROSS-EXAMINATION OF PW-1.

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2 - NC: 2025:KHC:10179 CRL.P No. 9067 of 2021

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THIS CRIMINAL PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS, THIS DAY, PRONOUNCED THE FOLLOWING:

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DATE OF RESERVED THE ORDER : 07.03.2025 DATE OF PRONOUNCEMENT OF THE ORDER : 11.03.2025

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CORAM: HON'BLE MR JUSTICE MOHAMMAD NAWAZ

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CAV ORDER

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The petitioner has preferred this petition, praying to set aside the order dated 30.10.2021 passed by the XVIII ACMM at Bengaluru in CC No.9793/2018.

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Vide impugned order, learned Magistrate has

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rejected the application filed by the petitioner/accused

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under Section 311 of Cr.P.C., with cost of Rs.1,000/-.

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The matter arises out of a proceeding initiated

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by the respondent/complainant against the petitioner herein, alleging an offence p/u/s 138 of N.I. Act, relating to three cheques allegedly issued by the accused for a sum of Rs.4,00,000/- each, towards a hand loan of

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Rs.12,00,000/- received by him from the complainant.

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3 - NC: 2025:KHC:10179 CRL.P No. 9067 of 2021

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The complaint was presented on 21.3.2018. The learned Magistrate after recording the sworn statement of the complainant, issued process to the accused. Material on record reveal that the evidence of PW1 was recorded and he was cross-examined by the defence. For further cross-examination, time was sought. Since the defence failed to cross-examine him, matter was posted for recording 313 Cr.P.C. statement of the accused. At that stage, an application u/s 311 of Cr.P.C. was filed to recall him for cross-examination. Inspite of granting sufficient time, imposing costs, as the defence failed to cross-examine PW1, her application was rejected vide impugned order.

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It is contended by the learned counsel for

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petitioner that as on 2.9.2021, SOP was in force due to COVID-19 Pandemic, hence, petitioner could not meet her advocate and the litigants were also not allowed inside the Court campus. He contended that, the reasons for not cross-examining PW1 are bonafide and not intentional and

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NC: 2025:KHC:10179 CRL.P No. 9067 of 2021

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if the petitioner is not permitted to cross-examine the complainant, she will be put to great hardship.

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It is further contended by the learned counsel that the respondent has misused the cheques and presented it to the Bank and the allegation that he has handed over a sum of Rs.12,00,000/- by way of cash without there being any declaration before the Income Tax authority, is not only false but unbelievable.

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The application filed by the accused under Section 311 Cr.P.C. for further cross-examination of PW1 has been rejected vide impugned order. The learned Magistrate has observed in the impugned order that it is the fourth application filed by the accused under Section 311 of Cr.P.C. for recalling of PW1 for further crossexamination. The case was posted for cross-examination of PW1 on 13.6.2019, on the said date, accused has not cross-examined PW1 and the matter was adjourned to 25.6.2019 on cost of Rs.300/-. Again, on the next date of hearing, on cost of Rs.500/- case was adjourned, but the

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5 - NC: 2025:KHC:10179 CRL.P No. 9067 of 2021

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accused did not cross-examine PW1. On 24.7.2019, the case was posted for recording the statement of the accused under Section 313 Cr.P.C. On 5.8.2019, accused filed an application under Section 311 Cr.P.C. to recall PW1 for cross-examination. On the same day, application was allowed on cost of Rs.500/-, but even on the subsequent dates the accused did not cross-examine PW1. Again the stage was closed and the matter was adjourned to 13.11.2019 for recording the statement of accused under Section 313 Cr.P.C. Once again the accused filed an application under Section 311 Cr.P.C. to recall the witness.

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The said application came to be allowed on cost of Rs.2,000/-. PW1 was partly cross-examined and the matter was adjourned to 29.11.2019 for further crossexamination. However, on that day accused failed to cross-examine PW1 and therefore, the case was adjourned to 17.12.2019. Even on that day, accused did not complete the cross-examination and once again the case was adjourned to 14.1.2020 and 5.2.2020. On that day, the case was closed and once again posted for recording

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6 - NC: 2025:KHC:10179 CRL.P No. 9067 of 2021

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the statement of the accused. Accused came up with one more application for recalling PW1. Even the said application was allowed on 25.2.2020. When the matter was adjourned once again for recording 313 statement of the accused, once again the accused came with the same application and the said application was allowed in order to give one more opportunity to the accused. The learned Magistrate has observed in the order that thereafter the case was adjourned by giving six hearing dates for the cross of PW1, but the accused did not turn up.

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The learned Magistrate has observed in the impugned order that the accused has adopted delay tactics to prolong the proceedings by filing application one after the other, by misusing the provision of law. He has not assigned valid reasons in the application. He has utilized sufficient opportunities and inspite of the same he has not completed the cross-examination of PW1.

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The reasons assigned by the learned Magistrate

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for rejecting the application filed by the petitioner/accused

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7 - NC: 2025:KHC:10179 CRL.P No. 9067 of 2021

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under Section 311 Cr.P.C. at no stretch of imagination can be said to be illegal or erroneous. This Court finds that several opportunities were given to the defence to further cross-examine PW1/complainant. The impugned order shows that only on one occasion, due to COVID situation the case was adjourned and the subsequent applications filed by the accused for recalling PW1 for further crossexamination was allowed but the accused failed to crossexamine him.

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The case is of the year 2018. The reasons assigned by the learned Magistrate to reject the application under Section 311 Cr.P.C. are just and proper. There are no grounds to interfere with the impugned order

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passed by the trial Court. Hence, the petition is dismissed.

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Sd/(MOHAMMAD NAWAZ) JUDGE

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TL List No.: 1 Sl No.: 1 Ct:ar

Smt Rashmi B C v. Sri M v Venkatesh

Case brief

What is this about?

What did the court decide?

Smt Rashmi B C v. Sri M v Venkatesh

Case brief

What is this about?

What did the court decide?

What the court decided

Issues for consideration

Statutes considered

Procedural history

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