In a summons case for an offence under the NI Act, recording the accused's statement under Section 313 Cr.P.C. before cross-examination of the prosecution witness does not vitiate the trial if based on the existing evidence, no further prosecution evidence is led, and no prejudice is caused.

CRIMINAL REVISION PETITION NO.100203 OF 2021

(397(CR.PC)/438(BNSS))

THIS CRIMINAL REVISION PETITION FILED UNDER SECTION 397(1) R/W. 401 OF CR.P.C SEEKING TO SET ASIDE THE JUDGMENT DATED 29/04/2021 IN CRIMINAL APPEAL NO.207/2018 BY THE VIII ADDL. DISTRICT AND SESSIONS JUDGE, BELAGAVI WHEREIN CONFIRMING THE JUDGMENT DATED 02/05/2018 PASSED BY THE V-JMFC, BELAGAVI IN C.C.NO.615/2013(OLD), C.C.NO.486/2017(NEW) FOR OFFENSE UNDER SECTION 138 OF NI ACT AND THEREBY ACQUIT THE PETITIONER/ACCUSED AND ANY OTHER RELIEF AS THIS HON'BLE DEEMS FIT, IN THE INTEREST OF JUSTICE.

THIS PETITION, COMING ON FOR FINAL HEARING THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

CORAM: THE HON'BLE MR. JUSTICE H.P. SANDESH

ORAL ORDER

Heard the counsel for the revision petitioner and also the counsel appearing for the respondent.

2. This revision petition is filed questioning the conviction order dated 02.05.2018 passed in CC No.486/2017 (Old CC No.615/2013) by the trial Court and the confirmation order dated 29.04.2021 passed in Crl.A.No.207/2018 by the appellate Court and praying this Court to set aside the conviction and confirmation order.

3. The factual matrix of the case of the respondent/complainant before the trial Court is that, the complainant and the accused are friends and well acquainted with each other. The accused had availed hand loan of Rs.2,50,000/- from the complainant in the month of September and November 2010. For repayment of the said loan, he had issued the cheque bearing No.405549 for an amount of Rs.2,50,000/- dated 01.03.2013 in the name of the complainant. When the said cheque was presented for payment, the same was returned with an endorsement “funds insufficient”. The statutory notice was issued by the complainant and the same was served on the accused on 02.03.2013, but the accused did not comply with the demand notice and no reply was given. Hence, the complaint was filed and cognizance was taken. The complainant got examined himself as PW1 and marked the documents as Exs.P1 to P5. The statement of the accused was also recorded. Thereafter, the trial Court having considered that the accused has not led any evidence and no rebuttal evidence and nothing is elicited through the mouth of PW1 to disprove the case of the complainant, convicted the accused and directed to pay a fine of Rs.2,61,000/- within a period of 6 months and in default of payment of fine, he shall undergo simple imprisonment for a period of six months. The same was challenged before the appellate Court and the appellate Court having considered both oral and documentary evidence, confirmed the conviction order passed by the trial Court. Being aggrieved by the conviction and confirmation order, the present revision petition is filed.

4. In the revision petition, for the first time, the ground is raised before this Court that the trial Court committed an error in recording the 313 statement at the time of appearance of the accused. The counsel brought to the notice of this Court the order sheet dated 28.08.2015, wherein the trial Judge noted that the accused is present, substance of the accusation is orally stated to the accused. The accused pleaded not guilty and submitted that he has got defence to make. The trial Court having considered the judgment of the Apex Court in the case of Indian Bank Association and other Vs. Union of India and others, ((2014) 5 SCC 590), comes to a conclusion that sworn statement of the complainant is treated as the evidence of the complainant. The cheque is marked as Ex.P1, Bank Endorsement is marked as Ex.P2, Notice issued is marked as Ex.P3, Postal Receipt is marked as Ex.P4 and Postal Acknowledgment is marked as Ex.P5. The trial Court also recorded the statement of the accused under Section 313 of Cr.P.C. and the accused has chosen to lead his evidence and hence, having considered that the accused appeared through counsel and also the warrant, which was issued was recalled to give an opportunity to cross-examine PW1 and even withou