IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF JULY, 2019 BEFORE THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.1365 OF 2015 BETWEEN:
SMT. ANU SINGH W/O SRI DEVARAJ AGED ABOUT 30 YEARS # 101, 3RD MAIN 1ST CROSS, SHREYAS COLONY J.P.NAGAR, 7TH PHASE BENGALURU – 560 078. … PETITIONER (BY SRI. RAMESH KUMAR R.V., ADVOCATE) AND:
SRI DINESH SINGH AGED ABOUT 50 YEARS C/O S.GURURAJ GOWDA #49, GROUND FLOOR 2ND MAIN, 2ND CROSS JARAGANAHALLI, J.P.NAGARA 6TH PHASE BENGALURU – 560 078.
ALSO WORKING AS SUPERVISOR AT M/S. DOLAN TECHNO CRAFTS PVT. LTD. GOLD PLATING DEPARTMENT # 166/17, AMRUTHAPPA LAYOUT DORASANI PALYA BANNERGHATTA ROAD BENGALURU – 560 076. … RESPONDENT (BY SRI B. MANJUNATH, ADVOCATE) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C PRAYING TO MODIFY THE IMPUGNED CONVICTION AND JUDGMENT DATED 05.01.2015, PASSED BY THE HON’BLE FAST TRACK COURT-IV, BENGALURU IN CRIMINAL REVISION PETITION NO.398/2014 THEREBY SENTENCING THE RESPONDENT TO PAY FINE DOUBLE THE AMOUNT COVERED UNDER THE INSTRUMENT IN ACCORDANCE WITH LAW.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Petitioner has invoked the jurisdiction of this Court under Section 482 of Cr.P.C., against the order passed by the Fast Tract Court-IV, Bengaluru City in Criminal Revision Petition No.398/2014.
2. The facts necessary to resolve the controversy involved in the petition are as follows:-
The petitioner (hereinafter referred to as the complainant) sought for prosecution of the respondent (hereinafter referred to as the accused) under Section 138 of the Negotiable Instruments Act, 1881 for dishonour of the cheque alleged to have been issued by the respondent for a sum of Rs.3,50,000/- towards the discharge of hand loan borrowed by the respondent.
3. Before the trial Court, complainant examined herself as PW.1 and exhibited 8 documents including original cheque (Ex.P2). In rebuttal, accused examined three witnesses and got marked 4 documents namely, Ex.D1 to Ex.D4.
4. Considering the above evidence, the learned Magistrate held that complainant failed to prove that the cheque in question was issued towards the legal debt due and payable by the respondent. The trial Court was of the opinion that the material produced by the complainant was not sufficient to hold that he had capacity to lend the amount of Rs.3,50,000/- to accused. However, the respondent/accused having admitted in the course of trial that he owed an amount of Rs.35,000/- to the complainant, the learned Magistrate proceeded to convict the respondent/accused under Section 138 of the Negotiable Instruments Act, 1881 and sentenced to pay a fine of Rs.35,000/-, in default to undergo simple imprisonment for a period of three months.
5. Undisputedly, the complaint filed by the petitioner/complainant ended in conviction. Under the said circumstances, by virtue of proviso to Section 372 of Cr.P.C., the complainant was required to prefer an appeal against the order, instead the complainant filed Revision Petition under Section 397 of Cr.P.C., before the Fast Track Court-IV, Bengaluru City questioning the inadequacy of sentence awarded by the trial Court. By the impugned order dated 05.01.2015, learned Fast Track Judge, while confirming the findings recorded by the trial Court, modified the sentence and enhanced the fine to Rs.70,000/- and in default to undergo simple imprisonment for a period of one year.
6. On going through the findings recorded by the learned Magistrate, I find that the conviction awarded by the learned Magistrate is not in conformity with the conclusion arrived at by it. Trial Court having come to the conclusion that the complainant failed to prove that the cheque in question was issued towards the discharge of debt of the legal liability existing on the date of issuance of the cheque, could not have proceeded to record the judgment of conviction. Be that as it may, the learned Magistrate having passed the judgment of conviction, the only remedy available for the petitioner/complainant was to prefer an appeal against the said order.
7. Section 372 of the Cr.P.C., specifically confers a right on the victim to prefer an appeal. The said provision was inserted in the Code of Criminal Procedure with effect from 31.12.2009, which reads as under:-
“372. No appeal to lie unless otherwise provided- No appeal shall lie from any judgment or order of a Criminal Court except as provided for by this Code or by any other law for the time being in force.
[Provided that the victim shall have a right to prefer an appeal against any order passed by the Court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation, and such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court.]”
8. In view of the above provisions, the complainant was required to file an appeal against the said order and not the revision petition under Section 397 of Cr.P.C. In that view of the matter, the learned Fast Track Judge has committed an error in assuming jurisdiction in the matter under Section 397 of Cr.P.C.
9. In view of the aforesaid reasons, petition filed under Section 482 of Cr.P.C., deserves to be allowed. As a result, the impugned order dated 05.01.2015 passed by the Presiding Officer, Fast Track Court-IV, Bengaluru in Criminal Revision Petition No.398/2014 is set aside. Having regard to the facts and circumstances of the case, liberty is reserved to the petitioner to take recourse to the remedy of appeal provided under Section 372 of Cr.P.C., in such event, the delay in prosecuting the matter before the revisional Court as well as before this Court shall stand excluded in computation of the period of limitation.
Reserving liberty as above, the petition is disposed of in terms of the above order.
Sd/- JUDGE PYR