- 1 - NC: 2025:KHC-D:2466 CRL.RP No. 100070 of 2023 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 7TH DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE RAVI V.HOSMANI CRIMINAL REVISION PETITION NO.100070 OF 2023 [397(Cr.PC)/438(BNSS)] BETWEEN: SHARANABASAVA S/O. GOLAPPA HALEMMANAVAR, AGE: 31 YEARS, OCC. DRIVER AND AGRICULTURE, R/O. BIJJUR, TQ. SHIRAHATTI, DIST. GADAG-582120. … PETITIONER (BY SRI NANDISH PATIL AND SRI RAMACHANDRA V BHAT, ADVOCATES) AND: HALAPPA S/O. BHEEMAPPA HALANNAVAR @ HALANNANAVAR, AGE: 30 YEARS, OCC. AGRICULTURE AND WEIGH BRIDGE OPERATOR, R/O. GUTTAL, TQ AND DIST. HAVERI-581110. … RESPONDENT (BY SRI RAM P.GHORPADE, ADVOCATE FOR SRI GIRISH C.KATTIMANI, ADVOCATE) THIS CRIMINAL REVISION PETITION IS FILED U/SEC. 397 (1) R/W. 401 OF CR.P.C. SEEKING TO CALL FOR THE RECORDS AND SET ASIDE THE JUDGMENT OF CONVICTION AND ORDER OF SENTENCE DATED 28.11.2022 PASSED BY THE COURT OF ADDITIONAL CIVIL JUDGE AND J.M.F.C. HAVERI IN C.C.NO. 1242/2020 CONFIRMED BY THE ADDITIONAL DISTRICT AND SESSIONS JUDGE, FTSC-I HAVERI VIDE ITS JUDGMENT DATED 16.02.2023 PASSED IN CRL.APPEAL NO. 99/2022 AND ACQUIT THE PETITIONER FOR OFFENCE PUNISHABLE U/SEC. 138 OF N.I. ACT. THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: BHARATHI H M Digitally signed by BHARATHI H M Date: 2025.02.10 14:37:45 +0530 - 2 - NC: 2025:KHC-D:2466 CRL.RP No. 100070 of 2023 ORAL ORDER (PER: THE HON'BLE MR. JUSTICE RAVI V.HOSMANI) Challenging judgment/order dated 16.02.2023 passed by Addl. District and Sessions Judge, FTSC-I, Haveri in Criminal Appeal no.99/2022 (‘Appellate Court’) and judgment/order dated 28.11.2022 passed by Addl. Civil Judge and J.M.F.C., Haveri in C.C.no.1242/2020 (‘Trial Court’), this revision petition is filed by accused (petitioner). 2. Sri Nandish Patil, learned counsel for petitioner submitted petition was against concurrently erroneous findings. It was submitted, respondent (complainant) had filed private complaint in C.C.no.1242/2020 (supra) alleging that he was agriculturist and resident of Guttal Town, owning 4 Acres of land in Bijjur village, wherein petitioner was an agriculturist and driver. And that petitioner had borrowed hand loan of Rs.4,00,000/- from complainant on 30.06.2019 for family necessity, and said amount was given to accused on his promise to repay it within three months and issued cheque bearing no.423372 drawn on State Bank of India for said amount. - 3 - NC: 2025:KHC-D:2466 CRL.RP No. 100070 of 2023 3. And on 14.10.2019 when complainant demanded repayment, petitioner postponed same by requesting complainant to present cheque after one week. But, on 23.10.2019, when complainant presented cheque for collection, it was dishonored and returned with endorsement dated 13.11.2019 as ‘Due to Funds Insufficient’. Immediately, complainant got issued legal notice on 03.12.2019, at both addresses of petitioner, which returned with postal shara as ‘refused’ on 10.12.2019 and 11.12.2019 respectively. Thereafter on 30.12.2019, he filed CC.no.1242/2020. 4. During trial, complainant examined himself as PW-1 and got marked Exhibits P1 to P8. Thereafter, though matter was adjourned for cross-examination of complainant on several dates of hearing, on 02.07.2022, learned Trial Judge took cross-examination of PW-1 as nil and proceeded with matter. However, recalling application filed on 25.08.2022 was allowed on same day and matter was listed on 08.09.2022. But on said day, without providing any further opportunity, once again cross-examination of PW-1 was taken as nil. It was submitted, due to some issues between petitioner and counsel, he had changed counsel on 29.09.2022 and on 05.11.2022, one more - 4 - NC: 2025:KHC-D:2466 CRL.RP No. 100070 of 2023 application was filed for recalling of PW-1 for cross- examination. However, without proper consideration, trial Court rejected it on ground that opportunity granted earlier was not availed. Thereafter, virtually proceeding ex-parte, judgment impugned herein was passed on 28.11.2022. 5. In support of his submission, learned counsel relied on decision of Hon'ble Supreme Court in Secretary, Department of Horticulture, Chandigarh and Anr. v. Raghu Raj, reported in 2008 (13) SCC 395, for proposition that for failure of counsel party should not be made to suffer. On above grounds, sought for allowing petition. 6. On other hand, Sri Gireesh C. Kattimani learned counsel for complainant opposed petition. It was submitted, on 30.06.2019, petitioner took Rs.4,00,000/- as hand loan from complainant and issued cheque towards repayment, which on presentation as per instruction of petitioner for collection was dishonored. Thereafter, complainant got issued legal notice demanding payment of cheque amount. Petitioner neither replied nor paid amount. Therefore, complainant filed private complaint. - 5 - NC: 2025:KHC-D:2466 CRL.RP No. 100070 of 2023 7. Even after appearance, petitioner did not show bonafides by paying amount. On other hand, he used dilatory tactics by seeking repeated adjournments. Even when matter posted for cross-examination of complainant and complainant was present on all dates of hearing, petitioner sought adjournments unnecessarily. After affording, sufficient opportunity, trial Court closed stage for cross-examination. And when application was filed for recalling, it had also graciously allowed application. Either deliberately or intentionally petitioner failing to utilize opportunity, one more application for recalling of PW-1 was filed. As sufficient opportunity was granted, second application came to be rejected, matter proceeded with, permitting petitioner to address arguments on main matter. Taking note of fact that execution of cheque was admitted, presumption under Section 139 of NI Act, was extended. On above grounds, sought for dismissal of petition. 8. Heard learned counsel, perused impugned judgment and order and record. 9. From above, point that would arise for consideration is: - 6 - NC: 2025:KHC-D:2466 CRL.RP No. 100070 of 2023 “Whether impugned judgment passed by both Courts calls for interference?” 10. From above, it is seen main ground on which judgment/order passed by both Courts are assailed is denial of adequate opportunity for cross-examination of complainant. 11. Though, there is no dispute about matter being adjourned at instance of petitioner on several dates of hearing, at stage of cross-examination of PW-1, and on failure to have taken it as ‘nil’ as well as grant of further opportunity after allowing application for recalling of PW-1 are not in dispute, leading to passage of impugned judgment/orders, reason assigned for failure to avail opportunity was some issue with counsel and consequent lack of intimation. In fact, petitioner had changed counsel and immediately thereafter filed application for recalling requires to be taken into account. Hon'ble Supreme Court in Varsha Garg v. State of M.P., reported in 2022 SCC OnLine SC 986, held as follows: “36. Summing up the position as it obtained from various decisions of this Court, namely Rameshwar Dayal v. State of U.P., State of W.B. v. Tulsidas Mundhra, Jamatraj Kewalji Govani v. State of Maharashtra, Masalti v. State of U.P., Rajeswar Prosad Misra v. State of W.B. and R.B. Mithani v. State of Maharashtra, the Court held: - 7 - NC: 2025:KHC-D:2466 CRL.RP No. 100070 of 2023 “27. The principle of law that emerges from the views expressed by this Court in the above decisions is that the criminal court has ample power to summon any person as a witness or recall and re- examine any such person even if the evidence on both sides is closed and the jurisdiction of the court must obviously be dictated by exigency of the situation, and fair play and good sense appear to be the only safe guides and that only the requirements of justice command the examination of any person which would depend on the facts and circumstances of each case.” 12. It is further to be taken note of that NI Act, avails presumption under Sections 118 as well as 139 of NI Act and thereby casting burden on accused, it would be in interest of justice to be liberal insofar as grant of opportunity. Extending said principle to petitioner in this case would appear justified as petitioner could not cross-examine complainant but also lead evidence on his side. Besides, difficulty faced by petitioner with earlier counsel requiring change of counsel would also require to be taken into account. 13. At same time, apprehension of complainant against dilatory tactics could be addressed by imposing appropriate - 8 - NC: 2025:KHC-D:2466 CRL.RP No. 100070 of 2023 cost/conditions. Point for consideration is answered in affirmative. Hence, following: ORDER Criminal Revision Petition is allowed; judgment/order dated 16.02.2023 passed by Addl. District and Sessions Judge, FTSC-I, Haveri in Criminal Appeal no.99/2022 and judgment/order dated 28.11.2022 passed by Addl. Civil Judge and J.M.F.C., Haveri in C.C.no.1242/2020 are set-aside. C.C.no.1242/2020 stands restored before trial Court. Both parties to appear without necessity of issuing fresh summons on 17.03.2025 on which day or to such other short date to which it may be adjourned if there arises any such need, complainant shall be present and available for cross-examination by petitioner. Petitioner shall cross-examine and conclude evidence on his side, if any, expeditiously; trial Court, thereafter conclude proceedings before end of July, 2025. In order to mitigate inconvenience caused to complainant, petitioner is directed to deposit - 9 - NC: 2025:KHC-D:2466 CRL.RP No. 100070 of 2023 50% of cheque amount inclusive of deposit already made. SD/- (RAVI V.HOSMANI) JUDGE GRD,RH CT:PA List No.: 1 Sl No.: 15