K Balasubramaniam Vs Pratap Singh

K BALASUBRAMANIAM, S/O SRI KALIANNAN, AGED ABOUT 58 YEARS, PROPRIETOR, M/S BMR TYRES NO.17/7, B M R COMPLEX, SANKARI ROAD, TIRUCHENGODE - 637 211, NAMAKKAL DISTRICT, TAMIL NADU.

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…PETITIONER

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(BY SRI SIVARAMAN VAIDYANATHAN, ADVOCATE)

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AND:

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Digitally signed by ANUSHA V Location: High Court of Karnataka

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PRATAP SINGH, S/O JEEVAN SINGH, AGED ABOUT 63 YEARS, NO.35, KARISHMA FARMS ROAD, GUBBALA, SUBRAMANYAPURA POST, BENGALURU - 560 061.

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…RESPONDENT

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(RESPONDENT - SERVED & UNREPRESENTED)

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THIS CRL.RP IS FILED U/S. 397 R/W 401 CR.P.C., PRAYING TO SET-ASIDE/QUASH IMPUGNED ORDER DATED 12.07.2023 PRODUCED AS ANNEXURE-A PASSED IN CRL.RP.636/2019 ON THE FILE OF HONBLE LXXV ADDL. CITY CIVIL AND SESSIONS JUDGE (CCH-76) BENGALURU AND ETC.,

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NC: 2025:KHC:51697 CRL.RP No. 1310 of 2023

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HC-KAR

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THIS PETITION IS COMING ON FOR ADMISSION , THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE RAVI V HOSMANI

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ORAL ORDER

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Challenging order dated 12.07.2023 passed by LXXV Additional City Civil and Sessions Judge, Bengaluru, in Crl.RP.no.636/2019, this revision petition is filed.

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Sri Sivaraman Vaidyanathan, learned counsel for petitioner submitted that proceedings were initiated on a private complaint filed by respondent (complainant) under Section 200 of Code of Criminal Procedure, 1978 ('CrPC' for short) alleging that accused was close friend of one Suresh and complainant was in field of digging bore-wells and accused was introduced by said Suresh for purchase of bore-well Lorry. Since accused had promised to help complainant in purchase of Lorry for bore-well, complainant had made payment of Rs.7 Lakhs in cash to accused in May, 2016. However, there was no progress and complainant had made request through mediator

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Suresh for return of amount. At that time, accused had stated that he would return amount by May, 2017 and issued post dated cheque bearing no.006458 dated 22.11.2017 for Rs.7

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NC: 2025:KHC:51697 CRL.RP No. 1310 of 2023

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HC-KAR

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Lakhs drawn on HDFC Bank, Marappa Gounder Plaza, Namakkal, Tamil Nadu, which when presented for collection on 24.07.2017, returned dishonored with endorsement 'funds insufficient' on 27.11.2017 and thereafter, demand notice got issued by complainant on 22.12.2017 was served on accused, failed to make payment within time stipulated, thereby committed offence punishable under Section 138 of NI Act.

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It was submitted, on appearance, accused denied charges and sought trial. Thereafter, complainant examined himself as PW.1 and got marked Exhibits P1 to P9. Thereafter, incriminating circumstances were explained to accused, which were denied and his statement under Section 313 of CrPC was recorded. Subsequently, accused deposed as DW.1 and got marked Exhibits D1 to D12. Alleging that trial Court had completed three stages on same day i.e., 19.06.2019, rejecting prayer of complainant, recording statement of accused under Section 313 of CrPC and recording evidence of accused by accepting affidavit in lieu of examination-in-chief was contrary to law, complainant filed CRL.RP.no.636/2019 before District and Sessions Judge.

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NC: 2025:KHC:51697 CRL.RP No. 1310 of 2023

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HC-KAR

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It was submitted, though prayer in said revision petition was challenging order only insofar as permitting accused to lead evidence by affidavit in lieu of examination-inchief, learned District Judge not only set aside entire order dated 19.06.2019 but also directed trial Court to permit complainant to lead further evidence, even when there was no prayer to said effect, would be illegal and arbitrary and sought for setting aside same.

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Though respondent is served, chosen to remain unrepresented.

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Heard learned counsel for petitioner and perused impugned judgment.

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At outset, it is seen that revision petition is in narrow compass assailing validity of order dated 12.07.2023 passed by Revisional Court granting relief beyond relief sought by complainant. In order to appreciate contention, it would be appropriate to refer to prayer sought in CRL.RP.no.636/2019, which reads as follows:

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"WHEREFORE, the Petitioner/Complainant prays that this Hon'ble Court may be pleased to call for records

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NC: 2025:KHC:51697 CRL.RP No. 1310 of 2023

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HC-KAR

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and to set-aside the order passed by the Hon'ble XII Additional Small Causes Judge, SCCH-8 & XXXVII Additional Chief Metropolitan Magistrate, Bangalore, dated 19.6.2019 taking the evidence on affidavit of the accused, in the interest of justice."

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It would also be appropriate to extract direction

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issued by Revisional Court:

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"The Revision petition filed the petitioner is hereby allowed.

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The impugned order passed by the trial court in C.C.No.824/2018 dated 19.06.2019 by the Hon'ble XII A.S.C.C.H.-8 and XXXVII ACMM, Bengaluru is hereby set-aside.

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The trial court is hereby directed to give an opportunity to Revision Petitioner / complainant to do further evidence of complainant side and follow the procedures as laid down in Criminal Procedure Code and deliver the judgment on the merits of the case as expeditiously as possible and both the parties are hereby directed to co-operate to the Court for speedy disposal by following the procedures laid down in Cr.P.C.

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Send back TCR forthwith to the trial court along with the copy of this order."

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NC: 2025:KHC:51697 CRL.RP No. 1310 of 2023

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HC-KAR

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Though in Revision Petition, there is assertion about trial Court rejecting complainant's request for leading further evidence, grounds urged do not include any such specific contention. Even in impugned order, there is reference to shortage of opportunity granted to complainant to lead evidence. But, such relief can be granted only on specific prayer. Therefore, impugned order would required to be quashed on said ground.

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Even insofar as other reason for interference that acceptance of affidavit in lieu of examination-in-chief of accused being contrary to law would also not hold in view of decision of Hon'ble Supreme Court in Indian Bank Association v. Union of India reported in (2014) 5 SCC 590 , and this Court in Afzal Pasha v. Mohamed Ameerjan reported in ILR 2016 KAR 4145 , in Crl.RP.no.1307/2010 disposed of on 15.10.2020, Crl.RP.no.100299/2021 disposed of on 15.09.2023 and Crl.P.no.9172/2018 disposed of on 12.06.2024, holding that there would be no impediment in accepting affidavit in lieu of examination-in-chief while recording evidence of accused.

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NC: 2025:KHC:51697 CRL.RP No. 1310 of 2023

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HC-KAR

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In view of above, revision petition is allowed ; order dated 12.07.2023 passed by LXXV Addl. City Civil & Sessions Judge, Bengaluru, in CRL.RP.no.636/2019 is setaside; and trial Court is directed to proceed from stage where proceedings rested as on 19.06.2019.

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Sd/(RAVI V HOSMANI) JUDGE

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AV

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List No.: 1 Sl No.: 37

K Balasubramaniam v. Pratap Singh

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K Balasubramaniam v. Pratap Singh

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