IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 09TH DAY OF JANUARY, 2019 BEFORE THE HON’BLE MR.JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.2004/2014 Between:
Sri G.B.Mallaraja Urs @ Ullas, Son of B.Basavaraja Urs, Aged about 33 years, Residing at Doddabelalu Village, Periyapatna Taluk, Mysore District, Represented by his SPA holder Sri.C.V.Homaraju, Son of Late Venkataramaiah, Aged about 35 years, Residing at Chikkanerele Village, Haranahalli Hobli, Periyapatna Taluk, Mysore District. … Petitioner (By Sri.Siddamallappa P.M., Advocate) And:
Sri.Shantharaju, Son of Basavanayaka, Aged about 40 years, Department of Sericulture, Doddabeedi, Periyapatna Town, Mysore District. ...Respondent (served and unrepresented) This Criminal Petition is filed under Section 482 of Cr.P.C., praying to quash the order dated 03.11.2012 passed in C.C.No.80/10 on the file of the Civil Judge (JR. DN.) and JMFC, Periyapatna and direct the Magistrate to permit the complainant/petitioner to lead evidence through Special Power of Attorney Holder by restoring criminal case in C.C.No.80/10 and to consider the case on merits by allowing the above criminal petition.
This Criminal Petition coming on for Admission this day, the Court made the following:
O R D E R The petitioner has invoked the jurisdiction of this Court against the order passed by the Principal District and Sessions Judge, Mysore in Criminal Revision Petition No.358/2013, whereby the petition filed by the petitioner herein under Section 397 of Cr.P.C is dismissed as not maintainable.
2. The petitioner herein presented a complaint under Section 138 of NI Act and the same was registered in C.C.No.80/2010. When the matter was set down for evidence, the complainant remained absent. As a result, the learned Magistrate dismissed the complaint for non-prosecution by order dated 28.08.2013. Consequently, the accused was set at liberty. Being aggrieved by the said order, the petitioner preferred Criminal Revision Petition No.358/2013 under Section 397 of Cr.P.C. Referring to the provisions of Section 256 of Cr.P.C and the consequences of the order of dismissal for non-prosecution, leading to the acquittal of the accused, learned Sessions Judge has dismissed the revision petition as not maintainable. In the said order, the learned Sessions Judge has specifically referred to the provisions of Sections 256, 378(4), 401(4) and 399(2) of Cr.P.C and has observed that in view of the said provisions, the only remedy available to the petitioner is to prefer an appeal under Section 378(4) of Cr.P.C. Petitioner having not availed the appeal remedy, has once again approached this Court seeking for quashing under Section 482 of Cr.P.C. without exhausting the statutory remedy of appeal provided to the petitioner. Hence, the power under Section 482 of Cr.P.C cannot be exercised in the instant set of facts.
At this juncture, the learned counsel for the petitioner seeks leave to convert the petition into an appeal. In view of the above said facts, leave cannot be granted.
For the above said reasons, the petition is dismissed.
SD/-
JUDGE NBM/KLV