IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL REVISION PETITION NO.1188/2018 Between:
Sri. C. Mahesh Kumar S/o late Chikkaiah Aged about 50 years R/at No.601-H Block World Trade Centre Behind Columbia Asia Hospital Rajajinagar, Bengaluru – 560 010 Present Address:
No.137, Avvanamane Near Balamuri Ganapathi Temple Gandhi Nagar, Bhadravathi Shimmoga District – 577 201. … Petitioner (By Sri. M. S. Shyamsundar, Advocate for Sri. Smt. Vandana P.L., Advocate) And:
1. The State by Cubbonpark Police Station Represented by State Public Prosecutor High Court Building Bengaluru – 560 001.
2. The Karnataka State Industrial Investment and Development Corp. Ltd., Having registered office at No.36 MSIL House, Cunningham Road Bengaluru – 560 052 Rep. By its Deputy Manager. … Respondents (By Sri. Vijay Kumar Majage, Addl. SPP for R1) This Criminal Revision Petition is filed under Section 397 read with 401 of Cr.P.C., praying to quash the entire proceedings pending on the file of learned on the file of the VIII Additional C.M.M. at Bengaluru in C.C.No.1390/2008 dated 18.01.2013 for offence punishable under Section 465, 471, 420 read with Section 34 of IPC.
This Criminal Revision Petition is coming on for Orders, this day, the Court made the following:
O R D E R This petition has been filed by the learned counsel for the petitioner/accused No.2 challenging the order passed by the Court of VIII Additional Chief Metropolitan Magistrate, Bengaluru in C.C.No.1390/2008 dated 18.01.2013 rejecting the application filed under Section 239 of Cr.P.C.
2. I have heard the learned counsel for the petitioner/accused No.2 and learned Additional State Public Prosecutor for respondent No.1/State.
3. It is the contention of the learned counsel for the petitioner that he has been charge sheeted for the offences punishable under Section 465, 471 and 420 read with Section 34 of IPC. The documents and other materials clearly go to show that the petitioner/accused No.2 only stood as a surety and he has not availed loan. It is his further submission that he stood as a third party surety, unfortunately, he could not run the industry, the said industry was wound up and the complaint was registered before the jurisdictional magistrate. Thereafter, the matter has been referred to the police and the police have filed the final report.
4. It is his further submission that he has placed all the material documents and no due certificate issued by the KSIIDC. By filing the application under Section 239 of Cr.P.C. prayed to discharge him from the case. It is his further submission that he is the Trustee in Tadikala Subbaiah Trust at Shivamogga, Director (Admission) in Subbaiah Medical College, he was also engaged in Court assignment regarding the issue of minority status to the institution and he was fighting for the litigations. In that light, he had been sent to judicial custody for 65 days and thereafter, he was released on bail. While he was in custody, his health was totally disordered and he was suffering from serious ill-health in the month of Novermber-2015 and the doctor has advised him to take bed rest. As per the advice of the doctor, he has undergone cardiac surgery in Mallige hospital. At that time, the doctor advised him to take rest for eight to twelve months. He further submitted that he has underwent treatment in different hospitals and Ayurvedic treatment for a period of 2 years and subsequently, he came to know that the learned Magistrate has rejected the application filed under Section 239 of Cr.P.C. and he has contacted his advocate and filed the present petition. The said delay is not deliberate or intentional. On these grounds, he prayed to allow the application and to condone the delay.
5. Per contra, the learned Additional State Public Prosecutor strictly objected to allow the application by contending that though several grounds have been urged for condonation of delay, no documents have been produced to show that he was suffering from cardiac problem and he has underwent surgery and the doctor has advised him to take bed rest. He further submitted that the application filed under Section 239 of Cr.P.C. to discharge him from the case and he is having every liberty to urge the grounds during the course of trial but not at this premature stage. Even though if the delay is not condoned, no prejudice or injustice would be caused to him. On these grounds, he prayed to dismiss the petition.
6. I have carefully and cautiously gone through the submissions made by the learned counsel appearing for the parties and perused the records.
7. Admittedly, I.A.No.1/2019 has been filed under Section 5 of the Limitation Act to condone the delay of 2109 days in preferring the present petition. The main contention which has been taken up in the affidavit and during the course of arguments are that he has suffered serious ill-health in the month of November- 2015 and the Doctor advised him to control and reduce body weight and subsequently, he underwent cardiac surgery on 24.05.2016 and the Doctor had advised him to take complete rest for eight to twelve months post surgery. But no documents have been produced to substantiate the said fact. In that light, the delay has not been property explained by the petitioner/accused No.2.
8. It is well settled proposition of law that each days delay has to be explained with sufficient cause and material but no documents have been produced to substantiate the said contention which have been taken during the course of arguments or in the affidavit accompanying the application under Section 5 of the Limitation Act. The accused was having liberty to raise all the grounds during the course of trial when the right is available to the accused and application has been rejected during the year 2013 and there is delay in filing the petition. If such application is allowed, the matter is reconsidered by this Court. There is delay in disposal of the main case.
9. In that light, I am of the considered opinion that the delay has not been properly explained and hence, I.A.No.1/2019 for condonation of dealy is dismissed and subsequently, the present revision petition is also dismissed. However, liberty has been given to the accused to urge all these grounds before the Court below during the course of the trial.
In view of disposal of the main petition, I.A.No.2/2019 for stay does not survive for consideration. Accordingly, the same is also disposed of.
Sd/- JUDGE NR/-