IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR.JUSTICE G.NARENDAR CRL.P. NO.1678/2017 BETWEEN A.P.DINESH S/O POONACHA, 55 YEARS AGRICULTURISH, MEENPET VIRAJPET TOWN & TALUK KODAGU DISTRICT.
(BY SRI KARUMBAIAH, T.A, ADV.) AND:
M.C.MANDAPPA S/O. CARIAPPA, 57 YEARS AGRICULTURIST BILLUGUNDA VILLAGE AMMATHI POST VIRAJPET TALUK.
…PETITIONER …RESPONDENT (BY SRI S D N PRASAD, ADV.) THIS CRL.P IS FILED U/S.482 CR.P.C PRAYING TO QUASH THE ORDER DATED 14.02.2017 PASSED BY THE II ADDITIONAL DISTRICT AND SESSIONS JUDGE, KODAGU, MADIKERI, SITTING AT VIRAJPET ON I.A.FILED U/S 386(b) OF CR.P.C. IN CRL.A.NO.42/2015 AND ALLOW THE SAID APPLICATION AS PRAYED FOR.
THIS CRL.P COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Heard the learned counsel for the petitioner and the learned counsel for the respondent.
2. Petitioner is before this court calling in question the order dated 14.02.2017 passed on the application preferred by the petitioner-appellant under Section 386-(b) of the Cr.P.C.
3. It is the case of the petitioner-appellant that there has been a miscarriage of justice as the counsel who was earlier representing him before the trial court in C.C. No.411/2006 on the file of the Principal Civil Judge (Jr.Dv) & JMFC, Virajpet had omitted to cross examine PW-1 on the veracity and authenticity of the several exhibits upon which the trial court had placed reliance to pass a judgment and order of conviction convicting the petitioner for the offences punishable under Section 379, 465 and 468 of the Indian Penal Code and sentencing him to undergo imprisonment for a period of two years. That the omission of the erstwhile counsel to carry out a detailed exhaustive cross examination was on account of a honest mistake and hence on these grounds he prayed that the appellate court be pleased to order retrial of the case by remitting it to trial court.
4. The said Clause (b) (i) of Section 386 of the Cr.P.C. empowers the appellate court to pass a judgment and order that the appellant be retried by the court of a competent jurisdiction.
5. The said application came to be resisted on the ground that it is a dilatory tactics adopted by the appellant. The court after adverting to the grounds raised in the application and in the objection has proceeded to reject the application on the ground that the complaint under Section 200 of Cr.P.C. for the offence under Section 138 of Negotiable Instrument Act is a summary trial and without assigning any further reason proceeded to reject the application and was further pleased to impose a cost of Rs.10,000/-.
6. In the considered opinion of this court the order called in question before this court is vitiated by sheer non- application of mind. The court below has failed to even take note of the fact that the petitioner has been convicted for the IPC offences and not under the NI Act. But the moot question that arises is whether the petitioner could have sought for the relief under an application or in the manner he has sought for from a reading of the provisions under Section 386 of Cr.P.C ?
7. It is apparent that the relief sought for or the affirmation or modification can be permissible only after fully hearing the parties and by way of a judgment and order finally disposing off the appeal. In that view of the matter, though the order impugned would not stand the scrutiny of law, yet no purpose would be served in remanding the matter back to the court. Hence, the order is set-aside and liberty is reserved to the petitioner-appellant to canvass the grounds at the time of final disposal of the appeal.
Petition stands ordered accordingly.
It is seen that no reasons are assigned by the court for imposing such a heavy cost. That cost imposed should be rationale and cannot be whimsical.
The cost deposited be refunded to the petitioner- appellant.
Sd/- JUDGE Chs* CT-HR