IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 04TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE K.SOMASHEKAR CRIMINAL REVISION PETITION NO.138 OF 2015 BETWEEN:
APPAIAH @ APPAIAHNNA, S/O LATE GANGAHANUMAIAH, AGED ABOUT 42 YEARS, R/AT NO.694, OLD PANCHYATH, OFFICE ROAD, YESHWANTHPURA, BANGALORE – 560 022. … PETITIONER (BY SRI ARUN G, ADVOCATE - ABSENT) AND:
V.GANESH RAO, S/O K VITTAL RAO, AGED ABOUT 40 YEARS, OWNER OF OMKAR BAKERY, R/AT NO.21, TRIVENI ROAD, YESHWANTHAPUR, BANGALORE – 560 022. … RESPONDENT (BY SRI JEEVAN K, ADVOCATE) - - -
THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 R/W 401 CR.P.C PRAYING TO SET ASIDE THE JUDGMENT DATED 08.12.2014 AND UPHOLD THE ORDER OF CONVICTION DATED 27.02.2013 PASSED IN C.C.NO.23368/2008 BY THE HON’BLE XII ACMM, BANGALORE BY ALLOWING THE CRL.RP.
THIS PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER There is no representation for the petitioner. Sri Jeevan K., learned counsel for the respondent is present.
2. Heard learned counsel for the respondent- accused, who is facing trial in C.C.No.23368/2008 where the proceedings initiated by the complainant for the offence punishable under Section 138 of Negotiable Instruments Act. Subsequent to initiation of the proceedings, the trial Court in the aforesaid case, has taken cognizance and proceeded the case against the accused.
3. In order to prove the case filed by the complainant against the accused, complainant has been examined as P.W.1 and also got marked Exs.P- 1 to P-6. Subsequently, the accused has denied the truth of the prosecution evidence adduced sofar. Subsequently, on behalf of the accused, D.Ws.1 and 2 have been examined and got marked the documents at Exs.D-1 and D-1(a).
4. Subsequently, heard arguments advanced by the learned counsel for the complainant, so also, the learned counsel for the accused and convicted the accused for the offence punishable under Section 138 of N.I. Act in C.C.No.23368/2008 dated 27.02.2013. The same has been incorporated in the operative portion of the order.
5. Against the said judgment of conviction and order of sentence rendered in C.C.No.23368/2008, accused has filed Crl.A.No.178/2013 before the first appellate Court, which came to be allowed by its order dated 08.12.2014 and the judgment of conviction and order of sentence rendered by the trial Court in C.C.No.23368/2008 came to be set aside. Against the dismissal of Crl.A.No.178/2013, this petition is preferred by the petitioner-complainant seeking for setting aside the order passed by the first appellate Court in Crl.A.No.178/2013 and for confirming the judgment of conviction and order of sentence passed by the trial Court in C.C.No.23368/2008 dated 27.02.2013.
6. In the meanwhile, learned counsel for the respondent-accused has placed reliance on the decision reported in ILR 2010 KAR 4059 in the case of K.H.Ganesh Rao vs. H.Gopal, wherein the Division Bench of this Court extensively dealt with the matters relating to Section 378(4) of Cr.P.C., the right of complainant to file an appeal against the order of acquittal passed by the Sessions Court with leave of the High Court, two conflicting judgments rendered by this Court, held that Section 378 (4) provides that if an order of acquittal is passed in any case instituted upon a complaint and the High Court on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court. The same has been discussed in detail in the aforesaid decision relied on by the learned counsel for the respondent.
7. Therefore, keeping in view the submission made by the learned counsel for the respondent, so also, the ratio laid down in the decision relied on by him, which is stated supra, this Court deems it appropriate to dispose of this petition in terms of the aforesaid reasons and findings. If the complainant is intended to file an appeal against the judgment rendered by the first appellate Court, he has to proceed in accordance with law.
Accordingly, this petition is hereby disposed of.
BSR Sd/- JUDGE