IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 08th DAY OF APRIL 2019 BEFORE THE HON’BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.3929 OF 2014 BETWEEN:
SRI. MOHSIN SHARIFF S/O DR A N SHARIFF AGED ABOUT 51 YEARS PARTNER PARAMOUNT CONSTRUCTION COMPANY NO.569, EDEN GARDENS 14TH CROSS, CMH ROAD INDIRANAGAR BANGALORE 560038. ... PETITIONER (BY SRI: ARUNA SHYAM M, ADVOCATE) AND M/S BLITZ HOTELS & RESORTS PRIVATE LIMITED A COMPANY INCORPORATED UNDER THE PROVISIONS OF COMPANIES ACT, 1956 HAVING ITS OFFICE AT A-15, II FLOOR, HOUSKHAS NEW DELHI - 110 016 AND REPRESENTED BY ITS DIRECTOR AND AUTHORISED REPRESENTATIVE MR VASANTH MADHAV BALIGA AGE: 52 YEARS, S/O MADHAV BALIGA.
... RESPONDENT (BY SRI: K.R.KRISHNAMURTHY, ADVOCATE) THIS CRL.P IS FILED U/S.482 CR.P.C PRAYING TO QUASH THE IMPUGNED ORDER DATED 11.3.2014 PASSED BY THE XVI A.C.M.M., BANGALORE IN C.C.NO.10365/2010 (PCR NO.1105/2010) ON THE APPLICATION FILED BY THE RESPONDENT NO.1 UNDER SECTION 317(2) OF CR.P.C. VIDE DOCUMENT NO.1.
THIS CRL.P COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R Heard learned counsel for the petitioner and learned counsel for the respondent.
2. Petitioner is aggrieved by the order dated 11.03.2014, whereby the learned Magistrate has allowed the application filed by the respondent/complainant under Section 317(2) Cr.P.C. and directed splitting up of the case against accused Nos.3 to 5.
3. Respondent (hereinafter referred to as ‘complainant’) filed a private complaint against five accused persons under Section 138 of N.I.Act for dishonour of the cheque issued by petitioner herein for and on behalf of accused No.1 firm consisting of accused Nos.2 to 5 as its partners. The petitioner herein responded to the summons and put in appearance before the learned Magistrate. However, accused No.3 to 5 could not be secured despite issuance of NBW against them. Hence, the respondent/complainant filed an application under Section 317(2) Cr.P.C. seeking to split up the case against accused Nos.3 to 5. Upon hearing the parties, by the impugned order, the learned Magistrate allowed the application and directed the case to be split up against accused Nos.3 to 5.
4. Learned counsel for the petitioner/accused No.2 submits that the learned Magistrate has committed serious error and illegality in splitting up the case against accused Nos.3 to 5 as common allegations were made against all the accused persons. That according to the complainant, accused persons were jointly and severally liable for the alleged dishonour of the cheque; under the said circumstances, the impugned order has caused grave injustice to the petitioner and has led to miscarriage of justice; secondly, he submits that the learned Magistrate has failed to follow the procedure prescribed under The Karnataka Criminal Rules of Practice, 1968. Without exhausting the remedy under Sections 82 and 83 of Cr.P.C, the learned Magistrate ought not to have sent the case for long pending Register and should not have split up the case against accused Nos.3 to 5. In view of these illegalities, the impugned order is liable to be quashed. Further, referring to Section 144 of N.I. Act, learned counsel has emphasized that without ensuring service to accused Nos.3 to 5 through RPAD, learned Magistrate could not have proceeded to split up the case against accused Nos.3 to 5.
5. Countering the submissions, learned counsel appearing for the respondent has placed reliance on the Division Bench ruling of this Court in M/s. MAC CHARLES (I) LTD., vs. CHANDRASHEKAR AND ANOTHER, reported in ILR 2005 KAR 3648 and has pointed out that in a criminal trial where the presence of the accused is a must and where the presence of the accused could not be secured in the manner known to law within a reasonable time, the case against such accused will have to be split up in the manner as provided under Chapter IV of Karnataka Criminal Rules of Practice and the case against the remaining accused who are present before the Court could be proceeded with further in accordance with law. Chapter IV of the Karnataka Criminal Rules of Practice empowers the Court to proceed with the trial in accordance with law. In the said decision, it is held that same procedure is applicable even in cases instituted under Section 138 of the Negotiable Instruments Act. Therefore, there is no error or illegality whatsoever in the impugned order passed by the learned Magistrate.
6. On hearing learned counsels appearing for the parties and on going through the material on record, the legal contentions urged by learned counsel for the petitioner, appears to be no more res-integra, in view of the above Division Bench ruling of this Court, whereunder the very question raised by the learned counsel for the petitioner has been decided by this Court and has held as under:-
“ Therefore in a criminal trial where the presence of the accused is a must and where the presence of the accused could not be secured in the manner known to law within a reasonable time, the case against such accused will have to be split up in the manner as provided under Chapter IV of the Karnataka Criminal Rules of Practice and the case against the remaining accused who are present before the Court could be proceeded with further in accordance with law. The same will be the procedure applicable even in cases instituted for the alleged offences under Section 138 of the Negotiable Instruments Act.”
7. The Division Bench of this Court has considered various provisions under The Karnataka Criminal Rules of Practice, 1968, N.I.Act and The Code of Criminal Procedure, 1973. Chapter IV, Sub-rule(2) of The Karnataka Criminal Rules of Practice, 1968 provides that:
“When there are several accused persons in a case and only some of them have appeared or have been produced before the Court or some of the accused have remained absent or having appeared or having been produced, remain absent at subsequent stages, if the Magistrate is satisfied that the presence of other accused cannot be secured within a reasonable time, he shall proceed with the case as against such of the accused as are present and dispose it of according to law. As regards the other accused, he shall give the case a new number and enter it in the Register of Criminal Cases(Register No.III) and, if it remains pending for six months or more and efforts to secure the presence of the accused have failed and the case against the accused who have appeared has been disposed of, the Magistrate shall report to the Sessions Judge, who may direct that the case against the absentee accused be removed to the Register of Long Pending Cases(Register No.XIII):
Provided that, before making such a report to the Sessions Judge, the Magistrate shall have complied with the requirements of (Sections 87 and 88) of the Code and, whenever practicable, the provisions of (Section 512).
In view of this clear provision, the order passed by the learned Magistrate cannot be faulted with. The question of exhausting remedy under Sections 82 and 83 of Cr.P.C. would arise only after the case is entered in Registered No. III and before making a report to the Sessions Judge to transfer the case to the Register of Long Pending Cases (Registered No.XIII). In view of the above provision, if the Magistrate is satisfied that the presence of those accused cannot be secured within a reasonable time, the Magistrate is well empowered under the above Rules to proceed with the case as against such of the accused who are present and to dispose of the case in accordance with law. As a result, I do not find any justifiable reason to interfere with the impugned order. Consequently, the petition fails and the same is dismissed.
*mn/-
Sd/- JUDGE