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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
K.S. Mudagal, J.
Murali Mohan B N - Appellant
Versus
S. Nagaraj - Respondent
Criminal Revision Petition No. 65 of 2017
Decided On : 23-10-2020
Negotiable Instruments Act - Section 138 - The petitioner challenged the order of conviction and sentence under Section 138 of the Negotiable Instruments Act. The Court referred to the provisions of Section 138 and the requirement of arranging funds for the discharge of liability. The Court also mentioned the bank endorsements indicating insufficient funds. The Court considered the statutory notice issued by the complainant and the failure of the accused to comply. The Court discussed the procedure followed by the trial Court and the First Appellate Court. The Court also referred to the application filed under Section 391 of the Cr.P.C. to adduce additional defence evidence. The Court analyzed the records and the judgment of the First Appellate Court, highlighting its failure to consider the evidence of DW.2 and Exs.D19 to 23. The Court concluded that the matter required remand for reconsideration by the First Appellate Court.
Fact of the Case:
The petitioner challenged the order of conviction and sentence passed by the trial Court for the offence punishable under Section 138 of the Negotiable Instruments Act. The First Appellate Court confirmed the conviction. The petitioner sought remand to the First Appellate Court for reconsideration of the evidence. The Court found that the First Appellate Court failed to consider the additional defence evidence adduced by the accused. The matter was remanded to the First Appellate Court for reconsideration in a time-bound manner.
Finding of the Court:
The First Appellate Court failed to consider the evidence of DW.2 and Exs.D19 to 23, which amounted to a failure to exercise jurisdiction. The Court referred to the judgment in Jeet Ram v. Narcotics Control Bureau,2020 SCCOnline(SC) 735, which held that the Appellate Court has to re-appreciate and reconsider the entire evidence. The Court concluded that the matter required remand to the First Appellate Court for reconsideration.
Ratio Decidendi: The First Appellate Court's failure to consider the additional defence evidence amounted to a failure to exercise jurisdiction and went against the ratio of the judgment in Jeet Ram's case.
Result: The judgment and order of the First Appellate Court confirming the conviction and sentence were set aside. The matter was remanded to the First Appellate Court for reconsideration. The First Appellate Court was directed to appreciate the entire material and pass judgment within two months. The parties were directed to appear before the First Appellate Court on a specified date. The complainant was permitted to withdraw the amount deposited by the accused, subject to certain conditions. The benefit of suspension of sentence granted by the First Appellate Court would continue until the appeal was disposed of.
JUDGMENT
K.S.Mudagal, J. - With consent of both the parties, the matter is taken up for hearing.
2. Petitioner challenged the order of conviction and sentence passed by the trial Court against him for the offence punishable under Section 138 of Negotiable Instruments Act, 1881 ( the N.I. Act for short) and confirmed by the First Appellate Court.
3. The petitioner was the accused and the respondent was the complainant before the trial Court. For the purpose of convenience, the parties will be referred to henceforth with their ranks before the trial Court.
4. The complainant filed the complaint under Section 200 of Cr.P.C. against the accused seeking his prosecution for the offence punishable under Section 138 of the N.I. Act. He alleged that the petitioner without arranging the funds issued cheques Exs.P1 and P2 for a sum of Rs.5,00,000/- and Rs.4,00,000/- for discharge of his liability, thereby cheated him. He further alleged that the said cheques when presented to the bank were dishonoured as per bank endorsement Exs.P3 and P4 as funds insufficient . He issued statutory notice Ex.P5 calling upon the accused to make good the cheques amount which was neither replied nor complied.
5. The trial Court after taking cognizance of the offence, summoned the accused, conducted the trial. Initially before the trial Court, the complainant was examined as PW.1 and Exs.P1 to P16 were marked. Accused was examined as DW.1 and on his behalf, Exs.D1 to D18 were marked.
6. The trial Court after hearing the parties, by the judgment dated 13.01.2016 convicted the accused for the offence punishable under Section 138 of the NI Act and sentenced him to fine of Rs.15,50,000/- and in default to undergo simple imprisonment for one year. Out of the said fine amount, Rs.15,20,000/- was ordered to be paid to the complainant as compensation.
7. Accused challenged the said order before LXV Additional City Civil and Sessions Judge, Bengaluru City (CCH-66) in Crl.A.No.159/2016. When the matter was pending before the Sessions Court, accused filed an application under Section 391 of Cr.P.C. seeking leave to adduce additional defence evidence. The Sessions Court/First Appellate Court vide order dated 13.07.2016 allowed the said application and directed the trial Court to take additional defence evidence of the accused and resubmit the records by 31.08.2016.
8. The trial Court recorded further additional defence evidence. Accused examined another witness as DW.2 and got marked Exs.D19 to D23. Then the trial Court resubmitted the records to the First Appellate Court on 29.08.2016.
9. The First Appellate Court records show that on 13.07.2016 after passing the order on application under Section 391 of Cr.P.C., it did not fix next hearing date. It appears that thereafter the matter was not called before the First Appellate Court for hearing till 02.09.2016. The order sheet of the First Appellate Court shows that on 02.09.2016, the office placed records of the appeal with endorsement file was mixed up with some other file, hence put up today .
10. It appears that the learned Sessions Judge without noticing the earlier order dated 13.07.2016 ordered to list the matter for hearing on 17.09.2016. Thereafter, the First Appellate Court heard the arguments and by the impugned order dated 06.01.2017 dismissed the appeal.
11. The first ground of challenge to the order of the First Appellate Court is that, the First Appellate Court itself permitted additional defence evidence to be taken, but not considered the said evidence at all. Therefore, Sri A.V.Ramakrishna, learned Counsel for the petitioner submits that on that ground the matter requires to be remanded to the First Appellate Court for appreciation of the entire evidence and reconsideration.
12. Per contra, Sri S.Nagaraj, learned Counsel for the respondent submits that even excluding the evidence of DW.2 and Exs.D19 to 23 to convict the accused there was sufficient material before the trial Court and the First Appellate
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