- 1 - HC-KAR NC: 2025:KHC:19776 CRL.RP No. 500 of 2019 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF JUNE, 2025 BEFORE THE HON'BLE MR JUSTICE G BASAVARAJA CRIMINAL REVISION PETITION NO. 500 OF 2019 (397(Cr.PC) / 438(BNSS)) BETWEEN: AIZAZ ALI KHAN S/O DR. M.A. KHAN AGED ABOUT 56 YEARS R/AT NO.7,8 & 9 VISHWANEEDAM POST HEROHALLI, MAGADI RD., BANGALORE - 560091. …PETITIONER (BY SRI. JOSE SEBASTIAN., ADVOCATE) AND: BANDENAWAZ RAMADURG S/O RAJESAHED RAMADURG AGED ABOUT 45 YEARS R/AT NO.31, SRINIVASA NILAYA, 1ST MAIN, HEBBAL BINNY MILL ROAD, GANGANAGAR, BANGALORE-560032. …RESPONDENT (BY SRI. P.N.HEGDE, ADVOCATE) THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER PASSED IN C.C.NO.7845/2014 ON 20.07.2015 PASSED BY THE XII A.C.M.M., AT BENGALURU AND SET ASIDE THE JUDGMENT AND ORDER PASSED IN CRL.A.NO.1084/2015 ON THE FILE OF THE Digitally signed by LAKSHMINARAYAN N Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:19776 CRL.RP No. 500 of 2019 55TH ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, AT BENGALURU ON 31.12.2018. THIS PETITION, COMING ON FOR FINAL HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE G BASAVARAJA ORAL ORDER Revision Petitioner has preferred this revision petition against the judgment of conviction and Order on sentence dated 20th July 2015, passed in CC No.7845 of 2014 by the XII Additional Chief Metropolitan Magistrate, Bengaluru, which is confirmed by order dated 31st December 2018 passed in Criminal Appeal No.1084 of 2015 by the 55th Additional City Civil & Sessions Judge, Bengaluru (CCH – 56) (for brevity, hereinafter referred to as the “appellate Court”). 2. For the sake of convenience, the parties herein are referred to as per their status before the appellate court. 3. Factual matrix of the case is that, respondent filed complaint under Section 138 of Negotiable Instruments Act for dishonour of cheque for Rs.7,50,000/-. The trial Court convicted the accused under Section 138 of Negotiable Instruments Act with fine of Rs,.8,80,000/- and in default, to - 3 - HC-KAR NC: 2025:KHC:19776 CRL.RP No. 500 of 2019 undergl simple imprisonment for a period of three months. Being agrieved by the said conviction order, accused preferred appeal before the appellate Court and the same came to be dismissed by order dated 31st December 2018. However, the appellate Court reduced the fine amount from Rs.8,80,000/- to Rs.8,10,000/- Being aggrieved by the judgment of both the courts, the accused is before this Court in this revision petition challenging the conviction order. 4. Sri Jose Sebastian, Learned Counsel appearing for the Revision Petitioner submit that the trial Court has not provided an opportunity to accused for full cross examination of PW1 and also to adduce defence evidence. Accused has clearly stated in his statement under Section 391 of Code of Criminal Procedure that there is a defence evidence on his behalf. Unfortunately, the accused and his Advocate not appeared before the Court and the case was posted for defence evidence. Hence the trial Court has passed the order, that the defence evidence is taken as ‘Nil’ and thereafter, arguments of the accused also taken as 'nil' and passed the impugned judgment of conviction, which is confirmed by the appellate Court. Further, he would submit - 4 - HC-KAR NC: 2025:KHC:19776 CRL.RP No. 500 of 2019 that the revision petitioner has filed application under Section 391 of Code of Criminal Procedure seeking permission to produce documents along with affidavit. The accused has produced the Acquittance Roll in which there is an entry of receiving the salary by the accused. This is a vital document to rebut the presumption under section 139 of Negotiable Instruments Act. Revision petitioner/accused is also ready to deposit the balance amount of Rs.3,10,000/- and he will undertake to co-operate for trial before the trial court, if at least, two months’ period is provided from this date. To substantiate his argument, he relied on the decisions of Hon'ble Supreme Court in RAMBHAU AND ANOTHER v. STATE OF MAHARASHTRA reported in (2001)4 SCC 749 and KALYANI BASKAR V. M.S. SAMPOORNAM reported in (2007)2 SCC 258. 5. Per contra, Sri P N Hegde learned Counsel appearing for the respondent would submit that the trial Court has provided sufficient opportunity to the accused to cross-examine PW1 and also to adduce defence evidence. However, the accused has not utilised that opportunity. Even before the appellate Court, the accused has not filed application under - 5 - HC-KAR NC: 2025:KHC:19776 CRL.RP No. 500 of 2019 Section 391 of Code of Criminal Procedure to produce additional documents. The conduct of the Revision petitioner goes to show that he is only trying to protract the proceedings. He has filed this application under Section 391 of Code of Criminal Procedure, which is not maintainable under law. Absolutely, there are no grounds to remand the case to the trial Court. He would further submit that the power to record additional evidence under Section 391 of Code of Criminal Procedure should only be exercised when party making such request was prevented from presenting the evidence in the trial despite due diligence being exercised or that the fact giving rise to such prayer came to light at a later stage during the pendency of appeal and that the non-recording of such evidence, may lead to failure of justice. He submits that revision petitioner has not made out grounds to show that what prevented him to produce the documents before the trial Court or before the appellate Court. Hence he sought for dismissal of the application filed under Section 391 of Code of Criminal Procedure as well as revision petition on merits. - 6 - HC-KAR NC: 2025:KHC:19776 CRL.RP No. 500 of 2019 6. To substantiate his argument, he relied on the decisions of Hon'ble Supreme Court in H.N. JAGADEESH v. R.R. RAJESHWARI reported in (2019)16 SCC 730 and in the case of AJITSINH CHEHUJI RATHOD v. STATE OF GUJARAT AND ANOTHER reported in 2024 SCC ONLINE SC 77. 7. Having heard arguments and both sides, the point that arise for my consideration is, Whether the Revision Petitioner has made out a ground to allow the application filed and Section 391 of Code of Criminal Procedure. 8. I have examined the material placed before this Court. After issuance of demand notice as required under Section 138 of Negotiable Instruments Act, the accused has not sent any reply. In this regard, he submits that the postal acknowledgement produced by the complainant reveals that the accused has not put his signature on acknowledgement Exhibit P5. Therefore, the accused has no knowledge of this notice issued by the complainant. 9. Perusal of the Order sheet of the trial Court reveals that the trial Court has partly recorded evidence of PW1 on 12th November 2014. The trial Court has noted in the order sheet - 7 - HC-KAR NC: 2025:KHC:19776 CRL.RP No. 500 of 2019 that the accused and advocate “absent”, hence the cross of PW1 was taken as ‘Nil' and the case was posted for recording statement under section 313 of Code of Criminal Procedure’ and Non-bailable Warrant was issued against the accused and the case was posted to 20th December 2014. On that day, PF was paid and NBW was issued and case was posted 06th March, 2015. In the meanwhile, that on 26th February, 2015, the case was advanced and on that day, accused and his advocate were present. The Non-bailable warrant was recalled and the statement under Section 313 of Code of Criminal Procedure was recorded and the case was posted for defence evidence on 06th March, 2015. On 06th March, 2015, the accused remained absent and Exemption Application was filled and the same was allowed and the case was posted to 17th March, 2015. On 17th March, 2015, recall application was filed under Section 311 of Code of Criminal Procedure to recall PW1 for cross-examination. Same was allowed with cost of Rs.300/- and case was posted for cross of PW1 on 08th April, 2015. On 08th April, 2015, PW1 was partly cross-examined and at the request of learned counsel for the accused, further cross was deferred to 04th May, 2015. On 04th May, 2015 the accused was present and his - 8 - HC-KAR NC: 2025:KHC:19776 CRL.RP No. 500 of 2019 advocate remained absent and hence the cross of PW1 was taken as closed and case was posted to 16th May, 2015. On 16th May, 2015 the accused remained absent and exemption petition was filed and the same was allowed and cased was posted to 05th June, 2015. That on 05th June, 2015, advocate and complainant were present, accused counsel was absent. Hence, defence evidence taken as 'nil' and the case was posted on 09th June, 2015. That on 09th June, 2015, case was posted for arguments on 20th June, 2015. On 20th June, 2015, accused remained absent and exemption application was filed. Same was allowed and the case was posted for argument on 02nd July, 2015. On that day also, the exemption application was filed and the same was allowed and the case was posted for arguments finally on 09th July, 2015. On 09th July, 2015, accused and his counsel remained absent, hence defence evidence taken as ‘Nil’ and complainant’s side arguments was heard and the case was posted for defence side arguments, if any, on 15th July, 2015. On 15th July, 2015, the advocate and the complainant were present. The accused and his advocate remained absent till 4.00 pm. Hence, the defence arguments taken as ‘nil’ and case was posted for judgment on 20th July, - 9 - HC-KAR NC: 2025:KHC:19776 CRL.RP No. 500 of 2019 2015 and on 20th July, 2015 the judgment was pronounced by imposing fine of Rs.8,80,000/- for the offence punishable under Section 138 of NI Act. On the date of pronouncement of judgment also, the accused remained absent. 10. A perusal of the entire order sheet makes it clear that the trial Court has recorded the examination-in-chief of PW1 in the absence of accused and his Advocate, which is not permissible under Section 273 of Code of Criminal Procedure. The said Section reads thus: "273. Evidence to be taken in presence of accused. - Except as otherwise expressly provided, all evidence taken in the course of the trial or other proceeding shall be taken in the presence of the accused, or, when his personal attendance is dispensed with, in the presence of his pleader Provided that where the evidence of a woman below the age of eighteen years who is alleged to have been subjected to rape or any other sexual offence, is to be recorded, the court may take appropriate measures to ensure that such woman is not confronted by the accused while at the same time ensuring the right of cross-examination of the accused. - 10 - HC-KAR NC: 2025:KHC:19776 CRL.RP No. 500 of 2019 Explanation. - In this Section, "accused" includes a person in relation to whom any proceeding under Chapter VIII has been commenced under this Code." 11. When the accused counsel remained absent, the trial Court ought to have secured the accused by taking necessary steps. But before securing the accused, the trial Court has recorded the evidence of PW1 in the absence of the accused and his Advocate which is contrary to provisions of the abovesaid section and also same is contrary to the provisions of Article 21 of Constitution of India. 12. The trial Court has recorded the statement under Section 313 of the Code of Criminal Procedure on 26th February, 2015. The accused was not present at the time of recording the evidence of PW1. However, the trial Court has put a question under Section 313 of Code of Criminal Procedure that "Have you heard the evidence of complainant-PW1?" To this, the accused has answered "yes". Though the accused and his counsel were not present on the date of recording evidence of PW1, the accused has given his answer that he has heard the evidence of PW1. This answer recorded by the trial Court reveals that the trial Court, has mechanically recorded the - 11 - HC-KAR NC: 2025:KHC:19776 CRL.RP No. 500 of 2019 statement of accused which is not sustainable in law. It is settled principle of law that the recording of statement under Section 313 of Code of Criminal Procedure is not an empty formality as held by the Hon'ble Supreme Court in a catena of cases. This is also one of the reasons for remanding the case to the trial Court as the learned Magistrate has mechanically recorded the statement under Section 313 of Code of Criminal Procedure. 13. The trial Court has also committed an error in closing the defence evidence without securing the accused. When the accused and his Counsel remained absent, the trial Court ought to have taken steps for securing the accused in accordance to law. The trial Court, without taking steps to secure the accused, has passed the order that the defence evidence is taken as ‘nil’ and the defence argument is also taken as ‘nil’ which is not in accordance with law. It is settled principle of law that just and fair trial has to be conducted in all criminal cases under Article 21 of Constitution of India. Unfortunately, the trial Court has recorded the evidence of PW1 in the absence of accused. The learned Counsel for the respondent rightly - 12 - HC-KAR NC: 2025:KHC:19776 CRL.RP No. 500 of 2019 submitted that the accused could have filed application under Section 391 of Code of Criminal Procedure before the appellant Court. The revision petitioner has not assigned proper reason for non-filing of application under Section 391 of Code of Criminal Procedure before the appellate Court. It is the case of complainant that the cheque in question was issued towards arrears of salary. It is the case of the complainant that the total arrears was Rs.11.00 lakh, however the matter was settled and as final settlement, the accused has issued cheque for Rs.7,50,000/-. The learned Counsel for the revision petitioner would submit that in Acquittance Roll produced before the Court, it reveals that the accused has received salary since 2007 to 2012 and that there was no arrears on the part of the accused. Considering the facts and circumstances of the case, at this stage, it is just and proper to provide an opportunity to the accused to produce these documents before the trial Court and adduce defence evidence, without expressing any opinion on the merits of the case. 14. A perusal of the order sheet reveals that the accused has taken sufficient time in the trial Court as well as before the - 13 - HC-KAR NC: 2025:KHC:19776 CRL.RP No. 500 of 2019 appellate Court, and hence it is just and proper to impose a cost of Rs.10,000/-. Accordingly, appellant has made out a ground to allow the application filed under Section 391 of Code of Criminal Procedure. Hence, the point formulated is answered in the affirmative. 15. In the result, I proceed to pass the following: O R D E R (i) Revision petition is partly allowed with cost of Rs.10,000/-; (ii) Judgment of conviction and order on sentence 20th July 2015, passed in CC No.7845 of 2014 by The XII Additional Chief Metropolitan Magistrate, Bengaluru, which is confirmed by order dated 31st December 2018 passed in Criminal Appeal No.1084 of 2015 by the 55th Additional City Civil & Sessions Judge, Bengaluru (CCH – 56), are set aside; (iii) Application filed by the revision petitioner under Section 391 of Code of Criminal Procedure is allowed and the matter is remanded back to the trial Court with a direction to provide opportunity to the accused/Revision Petitioner for further cross- examination of PW1 and also to adduce - 14 - HC-KAR NC: 2025:KHC:19776 CRL.RP No. 500 of 2019 defence evidence, if any, before the trial Court; (iv) The trial Court is also directed to record fresh statement under Section 313 of the Code of Criminal Procedure, in accordance with law; (v) The complainant is also liberty to adduce further evidence, if any, before the trial Court; (vi) Accused shall deposit an amount of Rs.3,10,000/- before the trial Court within 15 days from today and upon such deposit, the same shall be kept in fixed deposit in any nationalised Bank in the name of the Court under auto-renewal scheme for a period of six months; (vii) Both the parties are directed to appear before the trial Court on 23rd June 2025, without waiting for further notice in this regard. (viii) The trial Court is requested to dispose of the matter within two months from the date of appearance of parties; (ix) Revision petitioner shall pay the cost of Rs.10,000/- to the complainant on or before 23rd June, 2025. Sd/- (G BASAVARAJA) JUDGE LNN List No.: 1 Sl No.: 33