IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF MARCH 2019 BEFORE THE HON’BLE MR. JUSTICE K. NATARAJAN CRIMINAL REVISION PETITION No. 387 OF 2019 BETWEEN:
Sri. R. Siddalinga Murthy, S/o. Rangashamaiah, Aged about 48 years, No.45/46, 2nd Main, 2nd Cross, Jaimaruthinagar, Nandini Layout, Bengaluru -560 096. …Petitioner (By Y.S. Shivaprasad, Advocate for Smt. Usha M.V., Advocate) AND Sri. Devappa, S/o. G. Manjappa Gowda, Aged about 62 years, No.52/11, 2nd Cross, Vidyanagar, Kurubarahalli, Bengaluru -560 086. …Respondent This criminal revision petition filed under Section 397 r/w 401 of Cr.P.C. praying to set aside the impugned judgment/order of conviction and sentence dated 28.11.2018 passed in C.C. No.4394/2016 by the Court of XIX A.C.M.M. at Bengaluru city which is confirmed by LXI Additional City Civil and Sessions Judge at Bengaluru by passing acquittal of the petitioner/accused from the alleged offence p/u/s 138 of the N.I. Act.
This criminal revision petition coming on for Admission this day, the Court made the following:
ORDER Heard the learned counsel for the petitioner.
2. Perused the order of First Appellate Court dated 07.03.2019 dismissing the appeal without hearing the appeal on merits. Therefore, by considering the facts and circumstances of the case, issuance of notice to the respondent is hereby dispensed with.
3. This revision petition is filed by the petitioner being aggrieved by the order of the appellate Court dated 28.11.2018, wherein the petitioner is said to be the accused before the XIX Additional Chief Metropolitan Magistrate, Bengaluru City in C.C. No.4394/2016 for the offence punishable under Section 138 of Negotiable Instruments Act (hereinafter referred to as ‘Act” for short) and has been tried and convicted by the trial Court and sentenced to pay a fine of Rs.7,50,000/- (Rupees Seven Lakhs Fifty Thousand Only) for the cheque amount of Rs.3,55,000/- (Rupees Three Lakhs Fifty Five Thousand Only) vide judgment dated 28.11.2018.
4. Being aggrieved by the conviction and sentence passed by the trial Court, the petitioner preferred an appeal before the Sessions Judge, Bengaluru City in Criminal Appeal No. 2184/2018 and also filed an interim application under Section 389 of Code of Criminal Procedure for suspending the sentence. The appellate Court allowed the Interlocutory Application with a condition to deposit 20% of the fine amount within 30 days from the date of order i.e., 11.12.2018. since the petitioner could not complied with the order dated 11.12.2018, When the matter was posted for hearing on 07.03.2019 the respondent appeared through advocate. The petitioner’s counsel herein remained absent. The trial Court passed the order stating that the order of that Court i.e., dated 11.12.2018 directing to deposit the fine amount has not been complied with. It is further stated that there is no reason for adjourning the matter and hence, dismissed the appeal and confirmed the judgment of the trial Court.
5. On perusal of the order under revision, it is apparently illegal for the reasons that the trial Court ought to have heard the arguments on merits and passed the judgment by disposing the same either confirming or setting aside the judgment of the trial Court. Once the order was not complied by the petitioner/accused by not depositing the amount, the trial Court ought to have vacated the interim order. It is the respondent/complainant, who has to take action to issue warrant for executing the judgment and recover the amount as per the judgment passed by the trial Court. Once the order was suspended and later vacated, the appellate Court ought to have proceeded to hear the appeal on merits and passed the judgment. But, merely that a conditional order for suspension of sentence was not complied by the petitioner/accused, the Court cannot proceed to dismiss the appeal by passing cryptic order, without assigning any reason on merits and confirm the judgment of trial Court, which is erroneous and illegal. The Hon’ble Apex Court and also this Court held in catena of decision that when the appeal filed against the conviction, the appellate Court has to pass judgment on merits and not to dismiss the appeal either for non prosecution or for default. The order of the appellate Court, normally goes to show that without passing any judgment separately on merits and without assigning any reason, it was dismissed only on the ground that the order was not complied with by the petitioner, which is illegal and therefore, this Court has to interfere with the order passed by the First Appellate Court.
6. Therefore, I am of the view that the impugned order of confirming conviction by LXI Additional City Civil and Sessions Judge at Bengaluru is required to be set aside. Accordingly, I pass the following ORDER (1) Petition is allowed.
(2) The order of LXI Additional City Civil and Sessions Judge at Bengaluru in Crl. Appeal No.2481/2018 dated 07.03.2019 is hereby set aside. The appellate Court is directed to dispose the matter on merits.
(3) Heard the arguments on I.A.No.1/2019 for suspension of sentence.
(4) The order of sentence passed by the trial Court is hereby suspended until disposal of appeal by appellate Court with a direction to deposit 50% of the cheque amount before the trial Court within four weeks and the appellate Court is hereby directed to proceed to pass the judgment on merits after calling the LCR.
Accordingly, petition is disposed of and I.A. No. 1/2019 is also disposed.
BVK Sd/-
JUDGE