- 1 - NC: 2025:KHC:10673 CRL.P No. 3915 of 2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR CRIMINAL PETITION NO. 3915 OF 2024 BETWEEN: 1. SRI. KUMARAPPA, S/O LATE S M KUTTAPPA AGED ABOUT 71 YEARS, R/AT KIRGANDOOR VILLAGE AND POST, VIA MADAPUR, SOMWARPET TALUK KODAGU DISTRICT-571 236. …PETITIONER (BY SRI. PANCHAM R D., ADVOCATE) AND: 1. SRI B K KUTTAPPA S/O LATE KUSHALAPPA AGED ABOUT 83 YEARS, R/AT NEAR HOUSING BOARD COLONY CHOWDLU, SOMWARPET TALUK KODAGU DISTRICT-571 236 …RESPONDENT (BY SRI. SOMANNA K.P., ADVOCATE) THIS CRL.P IS FILED U/S.482 CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 27.03.2024 PASSED BY THE COURT OF THE PRL.DISTRICT AND SESSIONS JUDGE, KODAGU AT MADIKERI IN CRL.RP.NO.79/2023 AND THE ORDER DATED 07.03.2023 PASSED BY THE COURT OF THE PRL.CIVIL JUDGE AND J.M.F.C SOMWARPET IN C.C.NO.446/2020. THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR Digitally signed by B K MAHENDRAKUMAR Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:10673 CRL.P No. 3915 of 2024 ORAL ORDER The petitioner has challenged the order passed by the Trial Court, wherein the application filed under Section 311 of the Cr.P.C. was rejected. 2. The respondent filed a private complaint under Section 200 of the Cr.P.C., alleging an offence punishable under Section 138 of the Negotiable Instruments Act, 1881. According to the complaint, the petitioner had entered into an agreement of sale with the respondent. Under the terms of this agreement, the petitioner received an advance sale consideration of Rs. 2,00,000/- (Two Lakh Rupees) from the respondent. However, since the sale transaction did not materialize, the petitioner issued a cheque for Rs. 3,50,000/- to the respondent in purported discharge of his liability under the agreement of sale. When the respondent presented the cheque for encashment, it was dishonoured due to insufficient funds. 3. During the course of the trial, after both parties had led their evidence, the petitioner-accused filed an application under Section 311 of the Cr.P.C., seeking to summon: • The Advocate who had drafted the agreement of sale, and • The co-executant of the sale agreement. - 3 - NC: 2025:KHC:10673 CRL.P No. 3915 of 2024 4. The petitioner contended that their testimonies were necessary to establish that the subject cheque was issued merely as a security instrument in anticipation of the sale transaction and not towards the discharge of any legally enforceable debt or liability. 5. The arguments advanced by the learned counsel for both parties have been duly considered. 6. A perusal of the agreement of sale indicates that the petitioner, along with his brother, executed the agreement in favor of the complainant. The agreement explicitly mentioned that the petitioner and his brother had provided a cheque to the complainant as a security measure. 7. The complainant, however, contended that the cheque in question was not merely a security instrument but was issued towards the settlement of the petitioner’s liability since the sale transaction ultimately did not materialize. 8. The Advocate who drafted the agreement of sale was not a party to the agreement but merely witnessed its execution. Since his role was limited to drafting the document, his testimony is not considered essential for establishing the petitioner’s defense. - 4 - NC: 2025:KHC:10673 CRL.P No. 3915 of 2024 9. However, the petitioner’s brother, S.K. Ramesh, was a co-executant of the agreement and a party to the transaction. Given his direct involvement, his testimony is relevant to determining whether the cheque was indeed issued as security or towards the discharge of a liability. Accordingly, the petitioner is entitled to cross- examine his brother, S.K. Ramesh, in support of his defense. 10. In view of the above findings, the petition is partially allowed. • The impugned order dated 27.03.2024, passed in Crl.R.P. No. 79/2023 by the learned Principal District and Sessions Judge, Kodagu and Madikeri, and the order dated 07.03.2023, passed in C.C. No. 446/2020 by the learned Principal Civil Judge and JMFC, Somwarpet, on the application filed under Section 397 of the Cr.P.C., are hereby set aside insofar as they relate to the summoning of the co-executant S.K. Ramesh. • Consequently, the application filed by the petitioner is allowed to the extent of summoning S.K. Ramesh as a witness. - 5 - NC: 2025:KHC:10673 CRL.P No. 3915 of 2024 • The petitioner is directed to cross-examine his brother, Sri S.K. Ramesh, on the date fixed by the Trial Court. • The Trial Court is further directed to conclude the trial within three months from the next date of hearing. Sd/- (HEMANT CHANDANGOUDAR) JUDGE BKM List No.: 1 Sl No.: 114