IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL REVISION PETITION NO.1079 OF 2017 BETWEEN:
Lakshmana S/o late Kalegowda, Aged about 44 years, R/at Dharmapuri Village, Kasaba Hobli, Aluru Taluk, Hassan District – 5732013. (By Sri.Kumara.K.G, Advocate) AND:
Puttaswamy Gowda, S/o late Rudregowda.
Dead by his LRs a) Susheelamma, W/o late Puttaswamy Gowda, Aged about 60 years.
b) Shoba, D/o late Puttaswamy Gowda, Aged about 30 years.
Both residing at R/at Dharmapuri Village, ...Petitioner Kasaba Hobli, Aluru Taluk, Hassan District – 5732013.
...Respondents (LR’s of respondent served but unrepresented) This Criminal Revision Petition is filed under Section 397 read with 401 of Cr.P.C., praying to set aside the judgment and sentence dated 11.09.2013 passed by the Civil Judge and J.M.F.C, Alur in C.C.No.148/2011 and judgment dated 05.08.2017 passed by the II Additional District and Sessions Judge, Hassan in Crl.A.No.188/2013 by allowing this Crl.RP.
This Criminal Revision Petition coming on for Admission, this day, the Court made the following:
O R D E R The present Revision Petition has been filed by the petitioner/accused being aggrieved by the judgment passed by II Additional District and Sessions Judge, Hassan in Crl.A.No.188/2013 dated 05.08.2017 where under the judgment of conviction and order of sentence passed by Civil Judge and J.M.F.C., at Alur in C.C.No.148/2011 dated 11.09.2013 was confirmed by dismissing the appeal.
2. I have heard the learned counsel for the petitioner/accused.
3. Respondents though served with notice, they have remained absent. There is no representation.
4. The case of the complainant before the Court below is that accused has taken a loan of Rs.1 lakh from the complainant on 03.05.2010 for his family necessities and in discharge of the said loan amount, on 01.06.2010, accused issued a cheque for an amount of Rs.1 lakh and when the said cheque was presented, the same was returned and the same was informed to the accused and accused requested the complainant to re-present it. On 01.07.2010, it was resubmitted and it was returned unpaid with endorsement as ‘funds insufficient’. Thereafter, legal notice came to be issued on 29.07.2010 and same was served on 31.07.2010. Thereafter, a complaint was filed. In order to prove the case of the complainant, complainant got examined himself as PW-1 and got marked documents as Exs. P1 to P-7. Accused has not examined any witnesses.
5. After hearing the learned counsel appearing for the parties, petition was allowed and accused was convicted and sentenced to pay a fine of Rs.1,30,000/- in default to undergone Simple Imprisonment for a period of 2 years.
6. Being aggrieved by the said judgment, accused preferred an appeal before the learned II Additional District and Sessions Judge and the same was dismissed.
7. It is the submission of the learned counsel for the petitioner/accused that the matter between the parties was settled amicably and a joint memo was filed before the trial Court and the same has not been submitted before the Appellate Court.
8. It is his further submission that the respondent/complainant died on 24.10.2016 and the impugned judgment came to be passed on 05.08.2017 against a dead person and as such, it is a nullity.
9. It is his further submission that the legal representatives of the respondents/complainants were not brought on record and no opportunity was given to legal representatives, the impugned order thereafter has been passed in favour of a dead person. On these grounds, he prays to allow the petition and remit back the matter to the first Appellate Court to consider the matter.
10. I have carefully and cautiously gone through the submissions made by learned counsel appearing for the parties and perused the records.
11. As could be seen from the records, it appears that the respondent/complainant expired on 24.10.2016 and without bringing the legal representatives of deceased respondent/complainant on record, the Court below has passed the impugned order dated 05.08.2017. Even the order sheet clearly goes to show that both the parties failed to appear before the Court along with their counsels. In that light, the Court took the argument as it heard and proceeded to pass the impugned order. Nobody has brought to the notice of the first Appellate Court that the respondent/complainant has already died on 24.10.2016. Without bringing the legal representatives on record, passing of the impugned order is a nullity and no such order can be passed in favour of a dead person. It becomes unexecutable judgment.
12. In that light, I feel that already in the present Revision Petition legal representatives of the respondent/complainant have been brought on record and they have been served with notice. There is no representation on behalf of the respondents before this Court.
13. In the light of the discussions held by me above, without expressing anything on the merits of the case, I feel that if the impugned judgment is set aside and the matter is remitted back to the first Appellate Court to dispose of in accordance with law by giving full opportunity to both the parties then this is going to meet the ends of justice.
14. In that light, the petition is allowed and the judgment passed by II Additional District and Sessions Judge in Crl.A.No.188/2013 dated 05.08.2017 is set aside and matter is remitted back to the first Appellate Court to issue fresh notice to the legal representatives of the respondent/complainant by bringing them on record by filing an appropriate application before the Court below and thereafter, to dispose of the case after hearing the parties in accordance with law.
In view of the disposal of the main petition, I.ANo.1/2017 do not survive for consideration and the same is disposed.
Sd/- JUDGE NS