IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE Dr. JUSTICE H.B. PRABHAKARA SASTRY CRIMINAL APPEAL No.1511 OF 2016 BETWEEN:
Dashrath Raj S. Son of Surajmal, Aged about 54 years Residing at D.No.98/1, Nazarbad Main Road, Mysuru – 570010.
(By Mr. S. Sushant Venkatesh Pai, Advocate) AND:
.. Appellant Yogesh Son of Kalappa, Aged about 48 years, M/s. Ashraya Agencies, No.3, Corporation Building Kalidasa Road, V.V. Mohalla, Mysurur-570 002.
(By Mr. Renukaradhya for Mr. P. Nataraju, Advocate) …Respondent This Criminal Appeal is filed under Section 378(4) of Cr.P.C praying to set aside the order dated:16.03.2012 passed by the J.M.F.C. (II Court) at Mysore in C.C.No.710/2010 and to restore the complaint acquitting the Respondent/accused for the offence punishable under Section 138 of Negotiable Instruments Act, etc.
This Criminal Appeal coming on for Orders this day, the Court delivered the following:
J U D G M E N T Called again in the afternoon.
Learned counsel for both the sides present.
2. Heard the arguments from both sides on I.A.No.1/2016 filed by the appellant under Section 378(5) of the Code of Criminal Procedure, 1973 (hereinafter for brevity referred to as “Cr.P.C.”) read with Sections 5 & 14 of the Limitation Act, seeking condonation of delay of 1568 days that has been caused in filing this appeal.
3. Learned counsel for the applicant while reiterating the contentions taken up by him in the application, stated that the applicant/complainant was not served with the notice after his complaint was transferred from the learned III JMFC Court, Mysuru to the learned II Additional Civil Judge, (Jr.Dn.) & JMFC, Mysuru. Therefore, it is only on 23.07.2014, when his client went to the Court out of curiosity to know the stage of the matter that he came to know about the dismissal of the complaint for not taking steps on 16.03.2012 itself. Thereafter, applying for the certified copy of the order, the appellant/complainant filed a Criminal Revision Petition No.335/2014 before the learned I Additional Sessions Judge, Mysuru challenging the impugned order. The said petition came to be allowed on 28.03.2015. The said order passed in revision petition was challenged before this Court under Section 482 of Cr.P.C. by the respondent which petition came to be allowed on 23.06.2015. After that, once again another Criminal Appeal was filed by the complainant before the learned Principal District and Sessions Judge, Mysuru in Criminal Appeal No.259/2015 which also came to be dismissed as not maintainable on 29.12.2015. It is only after obtaining the certified copy of the impugned order that the present appeal was filed.
4. Learned counsel for the respondent while reiterating the contentions taken up by the respondent in his statement of objections submitted that the very fundamental submission made by the appellant/ applicant that he was not served with the court notice by the Trial Court is primarily not a true statement in view of the fact that on 21.02.2012 itself, the court notice has been served upon the complainant and the certified copy of which notice and acknowledgement has been produced by the respondent along with the statement of objections. Learned counsel further submits that for the reasons best known to him, even thereafter, the complainant on three occasions approached three different forums to challenge the impugned order under this appeal. After these unsuccessful attempts, still, it has caused some more delay in approaching this Court through this appeal, which in totality have exceeded in more than five years’ delay in preferring this appeal. As such the same does not deserve to be condoned.
5. A perusal of the material placed before this Court would go to show that the present appellant/complainant in the Trial Court has instituted a private complaint against the present respondent under Section 200 of Cr.P.C. for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as “NI Act” for brevity). According to the complainant, the said complaint was originally filed before the learned JMFC II Court at Mysuru and then the said case was transferred to learned II Additional Civil Judge and JMFC Court at Mysuru. After such transfer, the court notice was served to the complainant. It is the main contention of the complainant that such court notice was not served upon him despite non-service of such notice, the Trial Court on 16.03.2012 proceeded to dismiss the complaint observing that steps have not been taken by the complainant to ensure service of notice upon the accused.
6. When the certified copy of the entire order sheet of the trial court that has been produced along with this memorandum of appeal is perused it goes to show that the Trial Court in its order dated 24.02.2012 has clearly made a record as follows:
“Notice served to the complainant. No representation.
Steps call on 16.3.
Sd/- 24/2.”
The said recording of the proceeding which clearly records that notice has been served, for the reasons best known to the complainant, is read by him as ‘notice issued’. The complainant/applicant even in the typed copy filed by him along with the certified copy of the order sheet of the Trial Court also has got it typed as ‘notice issued’ instead of ‘notice served’. Both the complainant as well as his learned counsel appear to have not noticed that the Trial Court has made a specific finding that the notice has been served upon the complainant prior to 24.02.2012.
The above finding also gains support when the certified copy of the notice along with its acknowledgement which is produced by the respondent herein along with the statement of objections, is perused. The said document which is a court notice issued to the said appellant/complainant by the transferee Court showing the date of hearing as 24.02.2012 has been acknowledged by the complainant on 21.02.2012 at 8:20 pm. The signature of the complainant/appellant along with date and time can be found on the backside of the said notice. Thus, three days earlier to the date of hearing mentioned in the said notice, the same has been duly served upon the complainant as such the Trial Court has rightly recorded the proceeding in the order sheet dated 24.02.2012 that notice has been served to the complainant. Therefore, the very first contention which is also the major contention of the appellant as well as his learned counsel that court notice was not served upon the complainant is not a true statement.
7. A perusal of the material placed before this Court including the synopsis of dates and events filed by the learned counsel for the appellant/applicant today at the time of arguments reveals that, after such dismissal of the criminal case for not taking steps on 16.03.2012, it was only on 23.07.2014, i.e. after more than two years four months, he applied for the certified copy of the said order. The said delay of two years four months has not been explained by him. The Court has taken 33 days to issue the certified copy challenging the said order of dismissal. The complainant approached the I Additional Sessions Judge, Mysuru, by filing a Criminal Revision Petition No.335/2014. The said petition came to be allowed on 28.03.2015. Thus, it has taken another 164 days. The respondent challenged the said order passed in Criminal Revision Petition before this Court under Section 482 Cr.P.C. by filing a Criminal Petition No.2146/2015 on 07.04.2015. The same came to be allowed on 23.06.2015. Thus the criminal petition has taken 76 days for its disposal. The complainant has taken 12 days’ time in obtaining the certified copy of the order passed in the said Criminal Petition No.2146/2015. Thereafter, once again he approached not the correct authority or court, but the learned principal District and Sessions Judge, Mysuru by filing a Criminal Appeal No.259/2015 on 23.11.2015. However, within 36 days i.e. on 29.12.2015, the said appeal came to be dismissed as not maintainable. To obtain the certified copy of the said order, the complainant took 32 days. Thus all put together, the complainant has spent 33+164+76+12+36+22=343 days in pursuing the remedy in the Court including the time taken for obtaining the certified copy. The total delay caused in filing this appeal is 1568 days. Thus, the difference of 1225 days has remained unexplained by the complainant. The said delay is more than three years and four months.
8. The Hon’ble Apex Court in the case of Basawaraj and another Vs. The Special Land Acquisition Officer in Civil Appeal No.6974/2013 reported in A.I.R. 2014 SC 746 has observed as follows:-
“The law on the issue can be summarized to the effect that where a case has been presented in the court beyond limitation, the applicant has to explain the court as to what was the sufficient cause which means an adequate and enough reason which prevented him to approach the court within limitation. In case a party is found to be negligent, or for want of bonafide on his part in the facts and circumstances of the case, or found to have not acted diligently or remained inactive, there cannot be a justified ground to condone the delay. No court could be justified in condoning such an inordinate delay by imposing any condition whatsoever. The application is to be decided only within the parameters laid down by this court in regard to the condonation of delay. In case there was no sufficient cause to prevent a litigant to approach the court on time condoning the delay without any justification, putting any condition whatsoever, amounts to passing an order in violation of the statutory provisions and it tantamounts to showing utter disregard to the legislature.”
9. In the light of the above judgment and in view of the fact that the complainant has failed to explain the delay of 1225 days, i.e. more than 3 years 4 months and as shown by his conduct also that apart from receiving the notice on 21.2.2012 itself, he could able to convince the learned I additional Sessions Judge, Mysuru in Criminal Revision Petition No.335/2014 that there was no service of notice and could able to get the Revision Petition allowed. Further, even before this Court also, despite the certified copy of the impugned order sheet clearly showing in its recording of proceeding dated 24.02.2012, that notice has been served to the complainant, in its typed copy filed by him, he has shown it as ‘notice issued’. Thus, he attempted to impress this Court that court notice was not at all served upon him. However, the very certified copy of the court notice and the acknowledgment signature with date and time put by none other than the complainant himself clearly demonstrates that he was served with a court notice on 21.02.2012 itself. Thus, apart from non explaining of enormous delay of 1225 days, the complainant has also attempted to mislead this Court by making a false submission regarding the service of court notice upon him. Therefore, the present application not only deserves to be dismissed but with cost.
10. Accordingly, I.A.No.1/2016 is dismissed with cost of `5,000/- payable by the complainant to the High Court Legal Services Committee within two weeks from today and to file the compliance memo along with receipt in the registry within 15 days from today.
In case cost is not paid, the High Court Legal Services Committee is at liberty to recover the same in the process known to law.
Consequently, the appeal stands dismissed as barred by limitation.
BMV* Sd/- JUDGE