The main legal point established in the judgment is that the accused must be given reasonable opportunity to cross-examine the complainant and present his defense, and that valid service of legal notice is essential in cases under Section 138 of the N.I. Act.

JUDGMENT

H.B.Prabhakara Sastry, J. - The petitioner was the accused in the Court of learned XIII Addl. Chief Metropolitan Magistrate, Bangalore (hereinafter referred to as 'the Trial Court) in C.C. No.17510/2005 who was tried for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for brevity, hereinafter referred to as 'the N.I. Act').

2. The summary of the case of the complainant in the Trial Court is that the accused had borrowed a sum of Rs. 6,00,000/- from her on 07.03.2004 as loan for the purpose of purchasing a building property. The accused had agreed to repay the said loan amount on demand. Accordingly, the accused issued a cheque bearing No.209580 dated 07.11.2004 drawn on Syndicate Bank, Rajajinagar II Stage Branch, Bengaluru for a sum of Rs. 6,00,000/- favouring the complainant towards the repayment of the loan amount. The said cheque when presented for clearing from the complainant's banker, came to be returned dishonoued with the banker's endorsement "funds insufficient". Thereafter the complainant issued a legal notice dated 13.01.2005. The accused did not claim the notice sent through 'registered post acknowledgement due', as such, it was returned to the sender. However, the notice which was sent through 'certificate of posting' was duly served upon the accused. Still the accused neither responded to the notice nor paid the demanded cheque amount. Hence, the complainant instituted a criminal case against the accused in the Trial Court, for the offence punishable under S.138 of the N.I. Act.

Since the accused pleaded not guilty, the trial was held wherein the complainant got herself examined as PW-1 and got marked documents from Exs.P1 to P10. The accused did not adduce any oral or documentary evidence on his behalf. The Trial Court, after hearing arguments from both side and considering the material on record, by its impugned Judgment of conviction and Order on sentence dated 12.07.2007, convicted the accused for the offence punishable under Section 138 of the N.I. Act and sentenced him accordingly.

3. Aggrieved by the Judgment of the Trial Court, the accused preferred an appeal in the Court of Fast Track (Sessions) Judge - V, Bangalore City (for brevity, hereinafter referred to as 'Session Judge's Court') in Crl.A. No.891/2007. The said Court, by its Order dated 10.01.2011 while confirming the Judgment of conviction passed by the Trial Court, dismissed the appeal. Aggrieved by the same, the accused has preferred this revision petition.

4. The Sessions Court and the Trial Court records were called for and the same are placed before the Court.

Perused the materials placed on record.

5. Though notice was served upon the respondent, she remained unrepresented. As such, considering the nature of the case and in the best interest of justice, this Court, by the Order dated 06.08.2020, appointed learned counsel Dr.J.S. Halasetti as amicus curiae for the respondent in the matter.

Similarly, since the learned counsel appearing for the revision petitioner also remained absent on a few dates of hearing, this Court, by its detailed Order dated 13.08.2020 appointed learned counsel Sri Amit Deshpande as amicus curiae for the revision petitioner.

6. Heard arguments of the learned amicus curiae for the revision petitioner as well as the learned amicus curiae for the respondent who are physically present in the Court.

7. The point that arises for my consideration is, "whether the Judgment of conviction and Order on sentence passed by the Trial Court and confirmed by the Session Judge's Court is incorrect and suffers with any illegality or perversity, warranting interference at the hands of this Court?"

8. Learned amicus curiae for the revision petitioner in his arguments submitted that no reasonable opportunity was given to the accused for the cross-examination of complainant / PW-1 in the Trial Court. As such, the matter deserves to be remanded giving an opportunity to the accused to further cross-