2022 Supreme(Online)(Kar) 51126

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 6^TH DAY OF JANUARY, 2022

BEFORE

THE HON’BLE MR. JUSTICE K.NATARAJAN

CRIMINAL PETITION No.8607 OF 2021

CONNECTED WITH

CRIMINAL PETITION No.5999 OF 2021

IN CRIMINAL PETITION No.8607 OF 2021

BETWEEN

SMT.BHAVANI SINGH

W/O SRI KHUSHAL SINGH

AGED ABOUT 53 YEARS,

RESIDING AT NO.2, 9/1

NEAR MARIYAMMA TEMPLE

ADHITHYANAGARA

CHIKKABETTAHALLI

VIDYARANYAPURA

BENGALURU-560 097.

... PETITIONER

(BY SRI GIRIDHAR S V, ADVOCATE (VIDEO CONFERENCE))

AND

SRI.M.K.SURENDRAN

S/O LATE MADHAVAN

MAJOR

RESIDING AT NO.43, 1ST CROSS

SREE MATRUSHREENILAYA

VENKATAGIRIYAPPA LAYOUT

DODDABOMMASANDRA

VIDHYARANYAPURA

BENGALURU-560097

AND ALSO AT

SINDAGI FABERECH TECH

2

JELLY MACHINE BUS STOP

YELAHANKA MAIN ROAD

VIDYARANYAPURA POST

BENGALURU - 560 097.

... RESPONDENT

(BY SRI KAPIL DEV C ULLAL, ADVOCATE (VIDEO CONFERENCE))

THIS CRIMINAL PETITION IS FILED UNDER SECTION 482

CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 22.10.2021

PASSED IN CRL.RP.NO.308/2021 ON THE FILE OF THE LXI

ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU

(CCH-62) AS AT ANNEXURE-A.

IN CRIMINAL PETITION No.5999 OF 2021

BETWEEN

MR M K SURENDRAN

S/O LATE SRI MAHDAVAN

AGED ABOUT 60 YEARS,

RESIDING AT NO.43, 1ST CROSS

SREE MADHAVANILAYA

VENKATAGIRIYAPPA LAYOUT,

DODDABOMMASANDRA

VIDYARANYAPURA BENGALURU

KARNATAKA-560007.

... PETITIONER

(BY SRI KAPIL DEV C ULLAL, ADVOCATE (VIDEO CONFERENCE))

AND

MRS S BHAVANI SINGH

W/O SRI KUSHALA SINGH

AGED ABOUT 49 YEARS,

RESIDING AT NO.2, 9/1

NEAR MARIYAMMA TEMPLE

ADHITHYANAGARA, CHIKKBETTAHALLI

VIDYARANYAPURA, BENGALURU

KARNATAKA-560097.

... RESPONDENT

(BY SRI S V GIRIDHAR, ADVOCATE (VIDEO CONFERENCE))

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THIS CRIMINAL PETITION IS FILED UNDER SECTION 482

CR.P.C PRAYING TO QUASH THE ORDER DATED 29.03.2021

PASSED BY THE LEARNED 18TH A.C.M.M., BENGALURU IN

C.C.NO.17058/2017 AND THEREBY PERMIT THE PETITIONER TO

RECALL PW1 FOR FURTHER CROSS-EXAMINATION. ON A

SPECIFIED DATE.

THESE

CRIMINAL

PETITIONS

COMING

ON

FOR

ADMISSION THROUGH VIDEO CONFERENCING THIS DAY, THE

COURT MADE THE FOLLOWING:

1. The application for recalling witness for further cross-examination under Section 311 of Cr.P.C. should be allowed only in exceptional circumstances. The court may impose cost as condition for allowing such application. 2. Adjournment should not be granted unnecessarily. The court may impose cost as condition for granting adjournment.

Headnote:

CRIMINAL PROCEDURE CODE - SECTION 311 - SECTION 138 OF N.I. ACT - SUMMARY PROCEEDINGS - CROSS-EXAMINATION - ADJOURNMENT - RECALLING WITNESS - SUMMARY PROCEEDINGS UNDER SECTION 138 OF N.I. ACT - SUMMARY PROCEEDINGS TO BE CLOSED AS EARLY AS POSSIBLE - UNLESS SPECIFIC ORDER - CANNOT BE TRIED AS WARRANT CASE - SECTION 311 OF CR.P.C. - APPLICATION FOR RECALLING WITNESS FOR FURTHER CROSS-EXAMINATION - TO BE ALLOWED ONLY IN EXCEPTIONAL CIRCUMSTANCES - COURT MAY IMPOSE COST AS CONDITION FOR ALLOWING SUCH APPLICATION - ADJOURNMENT - SHOULD NOT BE GRANTED UNNECESSARILY - COURT MAY IMPOSE COST AS CONDITION FOR GRANTING ADJOURNMENT - SECTION 309 OF CR.P.C. - APPLICATION FOR ADJOURNMENT - SHOULD NOT BE GRANTED UNNECESSARILY - COURT MAY IMPOSE COST AS CONDITION FOR GRANTING ADJOURNMENT

Fact of the Case:

The complainant filed a private complaint against the accused for the offence punishable under Section 138 of the N.I. Act. The accused appeared before the Court, plea was recorded and the case was posted for the complainant evidence. Subsequently, PW.1 was cross-examined by the learned counsel for the accused on various dates. Thereafter, cross-examination was taken as Nil. The accused has filed an application under Section 311 of Cr.P.C. for recalling PW.1 which was allowed for several times. Thereafter, the trial Court rejected the application under Section 311 of Cr.P.C on 29.03.2021 and posted the matter for defence evidence which is challenged by the accused before this Court in Crl.P.No.5999/2021.

Finding of the Court:

The court held that the accused had dragged the case for more than two years for the purpose of further cross-examination and by recalling PW.1 on two to three occasions which was allowed by the trial Court by imposing cost. Even on 16.12.2020, PW.1 was fully cross-examined by the counsel for the accused. Such being the case, once again the accused filed an application under Section 311 of Cr.P.C. for further cross-examination which was rejected by the trial Court. The court further held that the proceedings before the Magistrate under Section 138 of N.I. Act is a summary proceedings which is required to be closed as early as possible and it cannot be tried as a warrant case until there is specific order. In spite of imposing cost several times by allowing 311 Cr.P.C. application, he has chosen to cross-examine the witness, therefore, the question of granting one more adjournment for further cross-examination is not required.

Issues: 1. Whether the accused can be allowed to recall PW.1 for further cross-examination under Section 311 of Cr.P.C.?2. Whether the accused can be granted adjournment for further cross-examination?3. Whether the order of the Sessions Judge staying the further proceedings for three months is sustainable under the law?

Ratio Decidendi: 1. The court held that the application for recalling witness for further cross-examination under Section 311 of Cr.P.C. should be allowed only in exceptional circumstances. The court may impose cost as condition for allowing such application.2. The court held that adjournment should not be granted unnecessarily. The court may impose cost as condition for granting adjournment.3. The court held that the order of the Sessions Judge staying the further proceedings for three months is not sustainable under the law.

Final Decision: 1. The court allowed the criminal petition filed by the complainant and set aside the impugned order passed by the Sessions Judge in Criminal Revision Petition No.308/2021 on the Interlocutory application for staying the further proceedings dated 22.10.2021.2. The court allowed the criminal petition filed by the accused and set aside the impugned order of rejection of I.A. under Section 311 of Cr.P.C. and allowed the application of the accused with the cost of Rs.15,000/- payable to PW.1.