IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF JULY, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL REVISION PETITION NO.791/2015 BETWEEN:
SRI M. SRINIVASA S/O SOUDI MAHADEVANAIKA AGED ABOUT 37 YEARS RESIDENT OF JAGALIKATTE ROAD NEAR CHIKKADEVAMMA TEMPLE NAIKAS ROAD HULLAHALLI VILLAGE NANJANGUD TALUK-571 302 MYSORE DISTRICT-571 302 ... PETITIONER (BY SRI.R.GEORGE LAZARUS, ADVOCATE) AND:
SRI H. N.SIDDARAJU S/O SIDDANAIKA AGED ABOUT 52 YEARS RESIDENT OF N.K.M ROAD HULLALLI VILLAGE NANJANGUD TALUK MYSORE DISTRICT-571 302 ... RESPONDENT (BY SRI.B.S.NATARAJU, ADVOCATE) THIS CRL.R.P IS FILED U/S.397 & 401 OF CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION AND SENTENCE DATED 26.02.2014 PASSED BY THE PRL.C.J. AND J.M.F.C., NANJANGUD IN C.C.NO.196/2012 AND SET ASIDE THE ORDER DATED 16.04.2015 PASSED BY THE PRL. DIST. AND S.J., MYSORE IN CRL.A.NO.97/2014 DISMISSING THE APPEAL FILED BY THE PETITIONER FOR NON-PROSECUTION.
THIS CRIMINAL REVISION PETITION COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R The present Criminal Revision Petition has been filed by the petitioner-accused challenging the order dated 16.04.2015 passed by the Principal District and Sessions Judge, Mysore in Crl.A.No.97/2014, wherein the appeal was dismissed for having not complied the order dated 18.09.2014 by this Court and thereby, confirmed the judgment of conviction passed by Principal Civil Judge & J.M.F.C., Nanjangud in C.C.No.196/2012 dated 26.02.2014.
2. I have heard the learned counsel for the respondent-complainant. Petitioner and his counsel remained absent. Since Criminal Revision Petition cannot be dismissed for default and it has to be heard and decided on merits as such the case was taken on merits.
3. The facts leading to the case are that the accused for his family necessity took a hand loan from the complainant to the extent of Rs.60,000/- and issued a Cheque bearing No.276705 dated 13.10.2011 drawn on State Bank of India in favour of the complainant. When the said Cheque was presented for collection through Canara Bank, Nanjangud, they returned the Cheque with an endorsement ‘Funds Insufficient’ on 19.11.2011. Thereafter, complainant issued a legal notice dated 27.11.2011. The same was served and the accused do not complied and did not paid the amount within the statutory period of fifteen days. As such, the complaint was filed under Section 138 of Negotiable Instruments Act, 1881 (‘the Act’ for short). Thereafter, complainant got examined PWs.1 and 2 and got marked Exs.P1 to P6 and thereafter, accused came to be examined under Section 313 of Cr.P.C and accused himself examined as DW.1 and got marked Exs.D1 to D4. Thereafter, the Court below heard both the counsel and convicted the accused for the offence punishable under Section 138 of the Act and sentenced to pay fine of Rs.1,20,000/- and out of the fine amount Rs.70,000/- was ordered to be given to the complainant. Being aggrieved by the said judgment of conviction, the present petitioner filed Crl.A.No.117/2014. When he filed an application for suspension of sentence, the Court below after considering the said facts and circumstances of the case, suspended the sentence and directed the appellant to pay 50% of the fine amount within the stipulated period. Against the said order the present petitioner filed Crl.P.No.5785/2014 before this Court. This Court, by its order dated 18.09.2014 allowed the petition and modified the order of the learned Principal District and Sessions Judge, Mysore dated 26.02.2014 and appellant was directed to deposit 25% of the fine amount instead of depositing 50% of the fine amount and two months time was also granted to the appellant for depositing the said amount. Since the said order has not been complied, the First Appellate Court dismissed the appeal on 16.04.2015. It is contended in the petition that there was no legally enforceable debt and only on account of the relationship between the petitioner and the respondent the Court below has wrongly convicted the accused. It is his further contention that in criminal cases, offences are to be proved beyond all reasonable doubt to convict the accused and if there are two views possible, one in favour of the accused is to be given. It is further contended that the findings given by the Court below are not sustainable in law. On these grounds, he prayed to allow the petition and to set aside the judgment passed by the Court below.
4. Per contra, learned counsel appearing on behalf of the respondent-complainant vehemently argued and submitted that the accused has issued Cheque dated 13.10.2011 and the complainant has complied the provision of Section 138 of the Act. Accused has defended his claim contending that he has only received Rs.15,000/- and not Rs.60,000/- and he had issued the Cheque to the effect of Rs.15,000/- only and the accused-petitioner has not taken any another defence. It is his further submission that the accused admits that he had given the Cheque and it bears signature. It is further submitted that duty cost upon the Court to draw the presumption. The accused- petitioner has to rebut the said presumption there is no such material placed to rebut the said presumption. The Trial Court after considering the said facts and circumstances had rightly convicted the accused. On these grounds, he prayed to dismiss the petition.
5. I have carefully and cautiously gone through the submission made by the learned counsel appearing for both the parties and perused the records.
6. On close reading of the order of the First Appellate Court, the First Appellate Court has passed an order on I.A.No.1 dated 26.02.2014 where under the appellant was directed to deposit 50% of the fine amount on execution of personal bond and the said order was challenged before this Court in Crl.P.5785/2014. This Court, by its order dated 18.09.2014, directed the appellant-petitioner to deposit 25% of the fine amount as against the order of 50% of the fine amount. Subsequently, there were some error in order of this Court. By order dated 24.02.2015 this Court made necessary corrections but as could be seen from the order of the First Appellate Court dated 16.04.2015 that it has passed the order as mentioned below:
“ Appellant and his counsel absent till 05.00 P.M.
Though it was submitted that the order dated 18.09.2014 in Crl.P.No.5785/14 is modified, despite giving sufficient opportunity no such order is passed and the appellant is not even prepared to file an affidavit to that effect. Therefore, there is no force in such contention. The report of compliance of the order dated 18.09.2014 is not filed. Hence the appeal dismissed.
Communicate the order to the trial Court.
Sd/- P.D.J., Mysuru.
16.04.2015 ”
On close reading of the said order, it reveals that only because the order dated 18.09.2014 of this Court has not been complied the appeal came to be dismissed. Though, the said ground has not been urged in the petition by the learned counsel for the petitioner- accused but however in order to do substantial justice, the order passed by the First Appellate Court is not a legal order and it is not justifiable, if the order dated 18.09.2014 has not been complied. Under such circumstances, the appeal ought not to have been dismissed and it could have been heard and decided on merits and a finding should have been given in this particular behalf. If at all the said order has not been complied the only remedy available to the Court below is to execute the sentence which has been passed by the Trial Court. The appeal could have been disposed as if there is no suspension of sentence.
7. Under such circumstances, I feel that the impugned order suffers from illegality and it has caused injustice to the petitioner-accused and as such in order to hear the case on merits and dispose of in accordance with law, matter requires to be remanded back to the First Appellate Court with a direction to hear and decide the case on merits by giving an opportunity to both the parties.
8. In the light of the discussion held by me, the Criminal Revision Petition is allowed and the order dated 16.04.2015 passed by Principal District and Sessions Judge, Mysuru is hereby set aside.
Matter is remanded back to the First Appellate Court to hear the case on merits and dispose of expeditiously within a period of three months from the date of receipt of this Order.
Respondent is directed to appear before the First Appellate Court on 19.08.2019.
Sd/- JUDGE KG