Sri Chikkegowda vs Sri Prabhakar

Pradeep D. Waingankar, J.—This revision petition u/s 397 read with 401 of Cr.P.C. is filed to set-aside the order dated 8-12-2009 in Crl. Appeal No. 1095/2007 on the file of Fast Track Court-IV, Bangalore City.

The revision petitioner was the accused and the respondent was the complainant in C.C. No. 3123/2006 before the XV Additional C.M.M., Bangalore. The complainant filed a complaint against the accused for offence punishable u/s 138 of Negotiable Instruments Act. The accused appeared before the Magistrate and denied the accusation. The complainant in order to prove his case, examined himself as P.W. 1 and relied upon fourteen documents marked as Exs. P-1 to P-14. When the case was posted for cross-examination of P.W. 1 on number of occasions, the accused went on taking time. Finally, the case was posted for cross-examination of P.W. 1 on 18-6-2007. On that day, P.W. 1 was absent. The accused was also absent. The accused was exempted. The learned Magistrate has closed the evidence of P.W. 1 on that day and proceeded further and by judgment dated 5-9-2007 convicted the accused for offence punishable u/s 138 of the N.I. Act and sentenced him to pay a fine of Rs. 9,50,000/-.

Aggrieved by the judgment of conviction and sentence, he preferred Crl. Appeal No. 1095/2007. The appeal came to be allowed by an order dated 8-12-2009 and the order passed by the Magistrate came to be set-aside and the matter has been remanded to the Magistrate with a direction to provide an opportunity to the accused to cross-examine P.W. 1 and to dispose of the matter. This order of the Sessions Judge is challenged in this revision petition.

I have heard the learned counsel for the accused/revision petitioner and perused the records.

It is noticed from the order sheet in C.C. No. 3123/2006 dated 18-6-2007 that P.W. 1 was absent. On that day, the cross-examination of P.W. 1 was taken as NIL, that is, the mistake committed by the Magistrate. When P.W. 1 is absent question of cross-examination on that does not arise. The Magistrate ought to have given an opportunity to cross-examine P.W. 1. Rightly for the said reasons, the appeal came to be allowed and the conviction came to be set-aside to do justice to the accused. There is no reason for the accused to file revision petition questioning the correctness of the order.

In my view, the order passed by the Sessions Judge remanding the matter to the Magistrate is an appropriate order. It does not call for my interference. Hence, I pass the following:-

The revision petition is dismissed.

The non-bailable warrant, if any issued against the accused by the Magistrate is hereby recalled.

P.W. 1 and accused are directed to appear before the XV Additional C.M.M. in C.C. No. 3123/2006 on 6-3-2014 without waiting for the notice and the learned Magistrate is directed to proceed with the case from the stage of cross-examination of P.W. 1 and to dispose of the matter on merits.