- 1 - HC-KAR NC: 2025:KHC:28662 CRL.RP No. 989 of 2021 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE G BASAVARAJA CRIMINAL REVISION PETITION NO.989 OF 2021 (397(Cr.PC) / 438(BNSS)) BETWEEN: 1. SRI SANDEEP C S S/OLATE SUKUMAR C R AGED ABOUT 33 YEARS RESIDING AT NO 42/2 /B SRI CHENNAKESHAVA NILAYA 3RD ROSS JAVARAIAH GARDEN THYAGARAJANAGAR BANGALORE - 560028 …PETITIONER (BY SRI G. SUKUMARAN, ADVOCATE) AND: 1. SRI VINAY R REDDY S/O R RAVIKUMAR AGED ABOUT 35 YEARS RESIDING AT NO 18 7TH CROSS 30 TH MAIN B S K 3RD STAGE BANGALORE - 560085 …RESPONDENT (BY SRI M.S. NAGARAJA, ADVOCATE) CRL.RP FILED U/S.397 R/W 401 CR.P.C BY THE ADVOCATE FOR THE PETITIONER PRAYING THAT THIS HONOURABLE COURT MAY BE PLEASED TO 1.SET ASIDE THE ORDER DATED 07.07.2021 PASSED BY THE HONBLE THE LXV Digitally signed by LAKSHMINARAYAN N Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:28662 CRL.RP No. 989 of 2021 ADDL.CITY CIVIL AND SESSIONS JUDGE AT BENGALURU IN CRL.A.NO.1038/2019; 2.AND SET ASIDE THE ORDER DATED 02.04.2019 PASSED IN C.C.NO.9086/2015 WHEREIN XVI A.C.M.M., AT BENGALURU WAS PLEASED TO CONVICT THE PETITIONER HEREIN FOR THE OFFENCE P/U/S 138 OF N.I ACT BY SENTENCING HIM TO PAY FINE OF RS.40,50,000/- IN DEFAULT OF PAYMENT OF SAID AMOUNT HE SHALL FURTHER DIRECTED TO UNDERGO S.I FOR A PERIOD OF TWO YEARS. THIS PETITION, COMING ON FOR FINAL HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE G BASAVARAJA ORAL ORDER Accused/Revision Petitioner has preferred this Revision Petition against the judgment of conviction and order on sentence dated 02nd April, 2019 passed in CC No.9086 of 2015 by the XVI ACMM at Bengaluru (for short "the trial Court") which is confirmed by the LXV Additional City Civil & Sessions Judge at Bengaluru (for short "the appellate Court") in Criminal Appeal No.1038 of 2019 dated 07th July, 2021. 2. For the sake of convenience, the parties herein are referred to with their status and rank before the trial Court. 3. I have heard the arguments on both sides. 4. Learned counsel for the accused-revision petitioner would submit that the complainant has filed complaint under Section 138 of Negotiable Instruments Act, 1881 for dishonour - 3 - HC-KAR NC: 2025:KHC:28662 CRL.RP No. 989 of 2021 of cheque of Rs.40,00,000/-. The complainant has adduced his evidence as PW1. However, the accused has not cross- examined the PW1. It is true that on behalf of the accused, applications were filed under Section 311 of the Code of Criminal Procedure. However, it was not possible for the accused to cross-examine PW1 on the ground that the accused had sustained fracture and Doctor has advised bed-rest. In this regard, the accused has also produced documents. The trial Court has observed the same in paragraph 31 of its judgment that the complainant has led his post-summoning evidence on 03rd December, 2015 and thereafter the accused failed to cross-examine him and though seven applications were filed on behalf of the accused under Section 311 of Code of Criminal Procedure seeking recall of the complainant for his cross- examination, the same came to be allowed by imposing costs. However the accused has failed to cross-examine the complainant. Further, he would submit that the accused preferred Criminal Petition in No.30 of 2017 on the file of the Sessions Court and the same came to be dismissed. Accused also preferred Criminal Revision Petition No.7537 of 2017 before this Court, which also came to be dismissed as having - 4 - HC-KAR NC: 2025:KHC:28662 CRL.RP No. 989 of 2021 become infructuous on 10th April, 2019 on the ground that the trial Court has already disposed of the matter on 02nd April, 2019 on merits. The conduct of the revision petitioner reveals that he has made all efforts to cross-examine PW1. But unfortunately, the trial Court has dismissed the application filed under Section 311 of Code of Criminal Procedure. Accused also filed application before the Trial Court on 03rd August, 2019 for exemption from appearance as the Doctor has advised him to have rest as he was suffering from injury and he was not in a position to attend the Court. The accused has also adduced evidence by filing affidavit and the same was recorded. On the date of examination-in-chief, at the request of the complainant, the case was deferred for cross-examination. Thereafter, the trial Court has not provided sufficient opportunity to the accused for his cross-examination. Accordingly, the valuable right of the defence of the accused in not affording the opportunity for cross-examination and also to adduce evidence on his behalf is deprived. Learned counsel would further submit that the accused already deposited a sum of Rs.16,20,000/- and the same is already received by the complainant. Accused is also ready to deposit another - 5 - HC-KAR NC: 2025:KHC:28662 CRL.RP No. 989 of 2021 Rs.2,00,000/- before the trial Court. The accused has got good grounds to contest the case and hence sought for remanding the case to the trial Court with a direction to provide opportunity to the accused to cross-examine PW1 and adduce his evidence. 5. As against this, the learned Counsel appearing for the respondent would submit that the trial Court has granted sufficient time and opportunity to cross-examine PW1 and the same is also observed in paragraph 31 of the judgment of the trial Court. However, the accused has not cross-examined PW1. Both the courts have properly appreciated the evidence on record in accordance with law and facts and absolutely, there are no grounds to interfere with the impugned judgments passed by the both the courts and sought for dismissal of revision petition. 6. Having heard the arguments and on perusal of materials, the following points that would arise for consideration: "1) Whether the revision petitioner has made out a ground to remand the case to the trial Court - 6 - HC-KAR NC: 2025:KHC:28662 CRL.RP No. 989 of 2021 with direction to provide an opportunity to the accused to cross-examine PW1 and to adduce his defence evidence?" 7. I have examined the material placed before this Court. It is not in dispute that the trial Court has allowed the applications filed under Section 311 of Code of Criminal Procedure to cross-examine PW1. However, finally, the trial court has dismissed the application. Being aggrieved by that order, the accused has preferred Revision Petition before the Sessions Court in Criminal Revision No.390 of 2017. The Revision Petition was dismissed on 08th September, 2017. Being aggrieved by the said order, the petitioner also preferred Criminal Petition before this Court in No.7537 of 2017. The same came to be dismissed, as the trial Court has disposed of the matter on 02nd April, 2019 on merits. It is submitted by the learned Counsel for the accused-Revision Petitioner that since the accused was suffering from fracture sustained in the road traffic accident, he could not approach the advocate and give instructions to cross-examine PW1. Accordingly, the learned Counsel for the accused could not cross-examine the PW1. Accused also adduced his evidence by way of affidavit. - 7 - HC-KAR NC: 2025:KHC:28662 CRL.RP No. 989 of 2021 On the date of filing affidavit, i.e. 10th January 2018, the learned Counsel for the complainant sought time for cross- examination. Accordingly, cross-examination of DW1 was deferred. Thereafter on 19th February, 2018, the evidence of DW1 was discarded. Thereafter, the order sheet reveals that on 13th March 2018, the case was posted for cross of DW1. The order sheet of the trial Court is not legible. Both advocates have failed to convince as to the contents of order sheet written by the learned Magistrate. The order sheet maintained by the trial Court reveals that the trial Court has not provided sufficient opportunity to the accused to adduce his evidence as DW1. In cheque bounce cases, there is a statutory presumption under Section 139 of the Negotiable Instruments Act that, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability. In the circumstances, the accused has to rebut the statutory presumption under Section 139 of Negotiable Instruments Act and for that he has to cross-examine PW1 and also he has to adduce his defence evidence. If the same is not permitted, the valuable right of the accused will be taken away and the - 8 - HC-KAR NC: 2025:KHC:28662 CRL.RP No. 989 of 2021 evidence of DW1 as also the cross-examination of PW1 are very much necessary to adjudicate the matter in dispute. It is settled principle of law that a fair trial has to be conducted in criminal cases and the rights of the accused cannot be curtailed in view of Article 21 of the Constitution of India. 8. Unfortunately, in the case on hand, though the trial Court has provided sufficient opportunity, the accused has not cross-examined PW1. However, in view of the submissions advanced by the learned Counsel for the revision petitioner and also looking at the bona fide conduct of the revision petitioner in filing criminal petition before this court, I am of the considered view that it is just and proper to provide one more opportunity to the accused to cross-examine PW1 and also to adduce his defence evidence. Accordingly, I answer the point arose for consideration, in the affirmative. In the result, I proceed to pass the following: O R D E R i) Criminal Revision Petition is allowed; - 9 - HC-KAR NC: 2025:KHC:28662 CRL.RP No. 989 of 2021 ii) Judgment of conviction and order on sentence dated 02nd April, 2019 passed in CC No.9086 of 2015 by the XVI ACMM at Bengaluru which is confirmed by the LXV Additional City Civil & Sessions Judge at Bengaluru (for short "the appellate Court") in Criminal Appeal No.1038 of 2019 dated 07th July, 2021, are set aside; iii) The matter is remitted back to the trial Court with a direction to provide opportunity to the accused to cross-examine PW1 and also to adduce his defence evidence and both the parties are at liberty to adduce further evidence, if any; iv) Accused shall deposit the amount of Rs.2,00,000/- in addition to the amount already deposited by the accused. The amount so deposited by the accused shall be kept in any Nationalised Bank for a period of one year under auto-renewal scheme; - 10 - HC-KAR NC: 2025:KHC:28662 CRL.RP No. 989 of 2021 v) The parties are directed to appear before the trial Court on 21st August, 2025 without waiting for any further notice in this regard; v) The trial Court is also directed to dispose of the case as expeditiously as possible and in any event within three months from the date of appearance of parties; vi) Registry to send the copy of this order along with the trial Court records to the concerned Court forthwith. Sd/- (G BASAVARAJA) JUDGE lnn List No.: 1 Sl No.: 38