IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 06TH DAY OF MARCH, 2019 BEFORE THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION No.3277 OF 2013 BETWEEN:
B.C. Venkatesh, S/o. Chikkathimmegowda, Aged 35 years, R/o Bilidegalu Village, B.H. Colony Post, Keragodu Hobli, Mandya Taluk, Mandya District – 571 401. …Petitioner (By Sri. R. Pramod, Advocate) AND:
D.M. Manjunath, S/o. B.N. Mahadevaiah, R/o Shivanajapa Layout, Channegowda Vatara, Mandya City – 571 401. ...Respondent This Criminal Petition is filed u/s 482 of Cr.P.C., praying to set aside the order dated 22.12.2012 passed by the Judicial Magistrate First Class, Mandya, in C.C.No.867/2004.
This Criminal petition coming on for Admission, this day, the Court made the following:
O R D E R Heard learned counsel for the petitioner.
Respondent is served and unrepresented.
2. The petitioner is aggrieved by the order dated 22.12.2012 passed by the Judicial Magistrate First Class, Mandya, in C.C.No.867/2004 whereby the complaint filed by the petitioner herein under Section 200 of Cr.P.C. for the offence under Section 138 of Negotiable Instruments Act, has been dismissed for non-prosecution.
3. A perusal of the order sheet maintained by the Court below in C.C.No.867/2004 discloses that a Joint Memo was filed before the Court on 07.09.2012. The joint memo reads as follows:
“Compromise memo filed by the complainant and accused jointly:
1. The matter has been settled by the both the parties out of the court for the amount of Rs.34,000/-.
2. The accused is agreed to pay the said amount to the complainant in two monthly installments from the date of this memo.
3. If the accused will not comply the terms of this memo this Honorable court may be pleased to pass the judgment as per law.”
4. The trial Court has not passed any orders on the said memo, instead has proceeded to recover the cheque amount by issuing a non-bailable warrant against the accused. The procedure followed by the learned Magistrate is opposed to the provisions of the Code of Criminal Procedure as well as the provisions of the Negotiable Instruments Act. Without recording conviction, the trial Court had no jurisdiction to issue warrant against the petitioner. The learned Magistrate was not an executing Court. Therefore, the impugned order and the proceedings conducted by the learned Magistrate subsequent to 07.09.2012 are liable to be set aside.
Accordingly, the petition is allowed. Impugned order dated 22.12.2012 passed by the Judicial Magistrate First Class, Mandya, in C.C.No.867/2004 is set aside. Matter is remitted to the learned Magistrate to proceed with the matter, in accordance with law.
Sd/- JUDGE SV