IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6TH DAY OF MARCH, 2019 BEFORE THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.3679/2013 BETWEEN:
S.V.GOVINDAPPA S/O. VENKATESHAMAPPA AGED ABOUT 51 YEARS R/AT KANDAVARAPET CHICKABALLAPUR TALUK & DISTRICT-562 101 … PETITIONER (BY SRI VASANTHAPPA, ADVOCATE) AND:
1. B.N.LAKSHMINARAYANAIAH S/O. BAJJA NAREPPA AGED ABOUT 66 YEARS 2. B.N.JAYARAMAIAH S/O. BAJJA NAREPPA AGED ABOUT 61 YEARS BOTH ARE PARTNERS OF M/S.SRINIDHI AND COMPANY MERCHANTS R/AT PLOT NO.C-10 DOOR NO.122 KENDRIYA VIHAR VELAPPANA CHAVADI CHENNAI-600 077 …RESPONDENTS (BY SRI B.ANAND, ADVOCATE [ABSENT]) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C PRAYING TO QUASH THE JUDGMENT DATED 30.03.2013 PASSED BY THE ADHOC DISTRICT AND SESSIONS JUDGE, FAST TRACK COURT-I, CHICKBALLAPUR IN CRL.REIVISON PETITION NO.2/2012 FILED BY THE RESPONDENTS AND ETC.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Heard the learned Counsel for the petitioner.
2. Learned Counsel for the respondents is absent.
3. The petitioner is aggrieved by the order dated 30.03.2013 passed by the Adhoc District and Sessions Judge, Fast Track Court-I, Chickballapur in Crl.RP.No.2/2012 whereby the Sessions Judge has set aside the order passed by the learned Magistrate in dismissing the complaint filed by the petitioner herein under Section 138 of the Negotiable Instruments Act, 1881 (‘N.I.Act’ for short).
4. The reason assigned by the learned Sessions Judge for setting aside the order passed by the learned Magistrate finds place in para-27 of the impugned judgment in Crl.RP.No.2/2012, which reads as under:
“27. The learned trial Judge without applying the statute under section 142(2) of Amended N.I. Act though entertained I.A.No.1 i.e., under section 5 of Limitation Act not followed the procedure duly and passed the order without giving opportunity to the revision petitioner is an irregularity. But in the present case on hand the lower court has not applied its mind what were the actual acts, how many days delay in preferring the complaint without applying the mind he allowed I.A.No.1 and order passed by the trial court is vitiated under law and the complaint filed without seeking explanation of 4 days is time barred one and it is not maintainable and liable to be dismissed. The right of the revision petitioners greatly prejudiced by the order of lower court. For the aforesaid reasons recorded we disagree with the order passed by the learned trial Judge. So, under these circumstances and facts of the case the petitioner is entitled to the relief sought for. No, question of remand the matter arises for this court in view of the facts of the case. In view of the above reasons recorded the order of the lower court not justified under law and it calls for interference of this court as discussed supra. For the aforesaid detail discussions I answer point No.1 and 2 accordingly.”
5. The reasoning assigned by the learned Sessions Judge is opposed to the material on record. Undisputedly, the complainant had filed an application under Section 142(b) of the N.I.Act seeking condonation of delay of 6 days in filing the complaint under Section 138 of the N.I.Act. The said delay could not have been condoned by the learned Magistrate without issuing notice thereof to the accused. Since the notice of IA filed under Section 142(b) of the N.I.Act was not served on the accused, it was not proper on the learned Sessions Judge to hold that the complainant has failed to offer satisfactory explanation for the delay of 6 days in presenting the complaint.
The application filed by the petitioner indicates that the petitioner-complainant has put-forth the medical ground and has also produced the medical records to show that there was sufficient cause for the delay in filing the complaint. Hence, the observation made in Crl.RP.No.2/2012 by the learned Sessions Judge being contrary to the material on record, is liable to be set aside. Consequently, the petition is allowed and the matter is remitted to the trial Court to serve the notice of IA on the respondents/accused and thereafter, proceed in the matter in accordance with law.
Sd/- JUDGE LB