IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF DECEMBER, 2017 BEFORE THE HON'BLE MR.JUSTICE BUDIHAL R.B.
CRIMINAL APPEAL NO.1394/2015 C/W CRIMINAL APPEAL NO.1393/2015 IN CRIMINAL APPEAL NO.1394/2015: BETWEEN:
SRI. N.B. CHOWDAREDDY S/O BYRA REDDY AGED ABOUT 43 YEARS R/AT NO.122, L.G. NIWAV LAKE SHORE GARDEN THINDLU, 1ST CROSS VIDYARANYAPURA POST BANGALORE-560097.
... APPELLANT (BY SRI. R.V.SHIVANANDA REDDY, ADV) AND:
SRI. D.E. RAGHUNATH S/O LATE ERAPPA AGED ABOUT 45 YEARS R/AT NO.3, 1ST FLOOR, HINDU COMPLEX, NEAR MATHIKERE OLD BUS STOP, MATHIKERE, BANGALORE-560054.
AND ALSO:
SRI. D.E. RAGHUNATH JYOTHI TILES NO.25, M.S. RAMAIAH NAGAR MATHIKERE BANGALORE-560054. ... RESPONDENT (BY SRI. SAMUEL S DANDIN, ADV) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4) OF CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT AND ORDER DATED 04.09.2015 PASSED IN CRL.A.NO.196/2015 ON THE FILE OF THE LXIV ADDL. CITY CIVIL AND S.J. (CCH-65), BANGALORE AND CONFIRM THE JUDGMENT AND ORDER DATED 07.10.2014 PASSED BY THE XVIII A.C.M.M., BANGALORE IN C.C. NO.6455/2013 – ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE P/U/S 138 OF N.I. ACT THIS CRIMINAL APPEAL COMING ON FOR ‘PART HEARD IN HEARING MATTERS’ THIS DAY, THE COURT DELIVERED THE FOLLOWING:
IN CRIMINAL APPEAL NO.1393/2015: BETWEEN:
SRI. N.B. CHOWDAREDDY S/O BYRA REDDY AGED ABOUT 43 YEARS R/AT NO.122, L.G. NIWAV LAKE SHORE GARDEN THINDLU, 1ST CROSS VIDYARANYAPURA POST BANGALORE-560097.
... APPELLANT (BY SRI. R.V.SHIVANANDA REDDY, ADV) AND:
SRI. D.E. RAGHUNATH S/O LATE ERAPPA AGED ABOUT 45 YEARS R/AT NO.3, 1ST FLOOR, HINDU COMPLEX, NEAR MATHIKERE OLD BUS STOP, MATHIKERE, BANGALORE-560054.
AND ALSO:
SRI. D.E. RAGHUNATH JYOTHI TILES NO.25, M.S. RAMAIAH NAGAR MATHIKERE BANGALORE-560054. ... RESPONDENT (BY SRI. SAMUEL S DANDIN, ADV) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4) OF CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT AND ORDER DATED 04.09.2015 PASSED IN CRL.A.NO.195/2015 ON THE FILE OF THE LXIV ADDL. CITY CIVIL AND S.J. (CCH-65), BANGALORE AND CONFIRM THE JUDGMENT AND ORDER DATED 07.10.2014 PASSED BY THE XVIII A.C.M.M., BANGALORE IN C.C. NO.14249/2013 – ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE P/U/S 138 OF N.I. ACT THIS CRIMINAL APPEAL COMING ON FOR ‘PART HEARD IN HEARING MATTERS’ THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Since the complainant and the respondent in both the appeals are one and the same, the factual story in both the cases are also one and the same, the legal aspects involved in both the aspects are one and the same, both the above appeals are taken together in order to dispose of them by this common order to avoid repetition of facts and law.
2. The complainant herein in both the appeals was the complainant before the trial court. He approached the trial court with the averments in the private complaint in both the cases that complainant and the respondent-accused are friends. The respondent approached the complainant for financial assistance of Rs.5,00,000/- in each of the two cases to meet his business commitments. Accordingly, appellant herein paid a sum of Rs.5,00,000/- to the respondent on 15.08.2011 in the connected appeal and on 04.09.2011 of Rs.5,00,000/- in Crl. Appeal No.1394/2015. Subsequently, when the complainant demanded the payment of the said amount, the respondent herein issued cheques in respects of the two transactions of Rs.5,00,000/- each. When the cheques were presented before the bank, they were returned unpaid for the reasons “funds insufficient”. Therefore, the complainant herein issued the legal notices to the respondent-accused through RPAD, notices were duly served in the connected case i.e. Crl. Appeal No. 1393/2015 but in the main matter, the notice was not claimed by the respondent. Therefore, the appellant herein filed two private complaints before the concerned ACMM Court alleging that the respondent-accused herein committed an offence punishable under Section 138 of Negotiable Instruments Act. After taking the sworn statement of the complainant, cognizance was taken, notices issued to the respondent-accused. The accused appeared in the matter, there afterwards when the criminal cases were pending before the trial court, appellant and respondent herein filed joint memos informing the court that the matters are settled. Therefore, as there was an element of settlement, the learned ACMM referred both the matters to the Lok- Adalath. Even before the Lok-Adalath in respect of both the matters, joint memos came to be filed signed by the appellant and the respondent herein so also signed by the learned counsels on both the sides. The Lok- Adalath after considering the joint memos taken it on record, it referred back the matter to the concerned ACMM Court informing that the matters are settled but, the Lok-Adalath has not drawn the award in view of the joint memos filed. Subsequently, the concerned ACMM Court by invoking Section 252 of the Criminal Procedure Code and in view of the joint memos convicted the respondent-accused in both the matters.
3. Being aggrieved by the same, the respondent accused approached the first appellate court preferring criminal appeals in Crl. Appeal No.195/2015 and Crl. Appeal No.196/2015 on the file of the LXIV Addl. City Civil & Sessions Judge (CCH-65), Bengaluru. After hearing both the sides and also after considering the legal position in the decision of the Hon’ble Apex Court reported in AIR 2012 Supreme Court 719 in the case of K.N. Govindan Kutty Menon Vs. C.D. Shaji allowed both the appeals setting aside the judgment and order of conviction passed by the JMFC Court and remanded the matter for trial court for fresh disposal in accordance with law.
4. Being aggrieved by the said order of remand passed by the first appellate court in both the matters, the appellant-complainant is before this court in both the appeals. He challenged the judgment and order of the first appellate court on the grounds as mentioned in the appeal memorandum.
5. Heard the arguments of the learned counsel for appellant-complainant in both the matters so also the arguments of the learned counsels appearing for respondent-accused in both the matters.
6. I have perused the grounds in the appeal memorandum. The order passed by the Lok-Adalath on the joint memos so also the order of the learned Magistrate convicting the respondent-accused and the judgment passed by the first appellate court remanding the matters to the ACMM Court. Perusing the materials, when the complainant as well as the accused submitted joint memos before the JMFC Court, after considering the said joint memos and opine that there is an element of compromise, the JMFC Court referred the matters to the Lok-Adalath. Before the Lok-Adalath also the joint memos were moved which were signed by both the complainant as well as the accused person and the learned counsels on both sides. But the Lok- Adalath even though considered the joint memos has not drawn the award but sent back the matters to the concerned court and thereafter, the concerned court passed the order convicting the accused invoking Section 252 of the Criminal Procedure Code. When it was challenged before the first appellate court, the first appellate court held that the judgment and order of conviction passed by the trial court invoking Section 252 of Criminal Procedure Code is illegal and not sustainable in law. Accordingly, the first appellate court allowed both the appeals setting aside the judgment and order of conviction and remanded back both the matters for fresh disposal. The said remand orders are challenged before this court. The JMFC Court invoked Section 252 of Criminal Procedure Code and convicted the accused. I have perused Section 252 of Criminal Procedure Code which reads as under:-
“S. 252. Conviction on plea of guilty.-If the accused pleads guilty, the Magistrate shall record the plea as nearly as possible in the words used by the accused and may, in his discretion, convict him thereon.”
Therefore, looking to Section 252 of the Criminal Procedure Code, it is conviction on the plea of guilty. It is nobody’s case in these two matters that while recording the plea the accused admitted the guilt. Therefore, the question of convicting the respondent- accused invoking Section 252 of the Criminal Procedure Code does not arise at all. Apart from that for convicting the accused there is no trial held, no evidence was recorded, no 313 statement recorded. Therefore, the question of the conviction of the respondent-accused by the trial court does not arise at all. I have also perused the principle enunciated in the decision of the Hon’ble Apex Court. The Hon’ble Apex Court ruled in the said decision that the award passed by the Lok-Adalath amounts to a decree. Therefore, it is executable in nature, but here as no such award was passed by the Lok-Adalath, the question of execution at this stage does not arise at all. Therefore, the first appellate court is justified in allowing the appeals and remanding both the matters to the concerned trial court with a direction to dispose of both the matters afresh. I do not find any illegality in the judgment and order of the first appellate court, no grounds to interfere into the said judgment and orders and so far as the contention of both the sides on merits of the case, they are kept open. Both the parties are at liberty to canvass their points on the merits of the case afresh. Hence, both the appeals are dismissed confirming the remand order passed by the first appellate court. However, as the matters are pending since 2012 and as the learned counsels argued both the matters before this court, the appellant as well as the respondent have to appear before the concerned trial court on 11.01.2008. The concerned trial court need not issue notices again to the parties. The matters are to be disposed of within six months from the date of appearance of the parties i.e. 11.01.2018.
In view of dismissal of the above appeals, I.A. No.1/2017 filed for direction in both the appeals have become infructuous.
Sd/- JUDGE Chs*