IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL REVISION PETITION NO.1228/2017 Between:
Smt. Sunitha Sharma D/o Sri Santosh Sharma Aged about 37 years Occupation: Agriculturist & Household Work R/at No.166, 15th Cross Malgala Village, Nagarabhavi II Stage Yeshwanthpura Hobli Bengaluru-560072. ...Petitioner (By Sri P. Prasanna Kumar, Advocate) And:
1. Appaiah S/o late Muthiah Aged about 70 years Residing at Malgala Village Yeshwanthpura Hobli Bengaluru-560080.
2. Hanumaiah S/o late Muthiah Aged 57 years Residing at Malgala Village Yeshwanthpura Hobli Bengaluru-560080.
3. Narasimha S/o late Muthiah Aged about 65 years Residing at Malgala Village Yeshwanthpura Hobli Bengaluru-560080.
4. H.N.Rajesh S/o H.G.Narayanaswamy Major Residing at No.54, 1st ‘B’ Main Nagarbhavi Main Road Cauvery Extension Bengaluru-560040.
5. State of Karnataka By Gnanbharathi Police Station Rep. by its State Public Prosecutor High Court Building Dr. B.R.Ambedkar Veedhi Bengaluru-560001. ... Respondents (By Sri Amruthesh N.P, Advocate for R2, Sri R. Srinivas, Advocate for R4, Sri M. Divakar Maddur, HCGP for R5, R1 and R3 served and unrepresented) This Criminal Revision Petition is filed under Section 397 r/w 401 of Cr.P.C., praying to set aside the order dated 30.11.2012 passed by the Presiding Officer, Fast Track Court (Sessions)-XI, Bengaluru in Criminal Appeal No.453/2012 thereby dismissing the appeal filed by the petitioner and confirming the order dated 27.03.2019 passed by the X Additional Chief Metropolitan Magistrate, Bengaluru in C.C.No.18887/2007 and consequently set- aside the order dated 05.01.2012 passed by the IX Additional Chief Metropolitan Magistrate, Bengaluru City, Bengaluru thereby dismissing the case of the petitioner in C.C.No.18887/2007 for non-prosecution, which was registered for the offence under Section 447 and 506(B) of IPC as against the respondent Nos.1-4/accused Nos.1-4 and consequently restore the said case to its original file and etc., This Criminal Revision Petition coming on for ‘Orders’ this day, the Court made the following:
ORDER Heard learned counsel for the petitioner/complainant and learned counsel for the respondent Nos.2 and 4.
2. The present application has been filed by the petitioner/complainant under Section 5 of the Limitation Act to condone the delay of 1368 days in preferring the present revision petition.
3. It is also accompanied with an affidavit of the petitioner/complainant.
4. It is the submission of learned counsel for the petitioner/complainant that a complaint was registered for the offences punishable under Sections 420, 463, 464, 466, 467, 468, 471, 506(B) r/w Section 34 of IPC.
5. The matter was referred for investigation and after investigation Police have filed the ‘B’ report.
Subsequently, the said ‘B’ report has been contested. Thereafter, the said ‘B’ report has been challenged by the complainant by filing his objections. Thereafter, the leaned Magistrate recorded the sworn statement of the complainant and other witnesses and registered the case in C.C.No.18887/2007 after four years and as the complainant was not present the case was dismissed on 06.09.2011 and subsequently, the application was filed to restore the complaint the same was allowed and again because of some inconvenience and family difficulties and as the mother of the complainant was suffering from various ailments and as he was having threat with respondent No.4, again he did not appear before the Court. Hence, the said complaint was dismissed. Again the matter was restored and because of the inconvenience, again the complainant remained absent and on 27.03.2012 the learned Magistrate dismissed the complaint for non appearance of the petitioner and application filed for restoration of complaint was refused. Against the said order, Criminal Appeal was preferred before the Presiding Officer, Fast Tract Court (Sessions)-XI, Bengaluru in Criminal Appeal No.453/2012. The Fast Track Court by considering merits of the case dismissed the appeal. It is his further submission that the petitioner/complainant was fighting for divorce litigation at Family Court and was suffering from financial constraints. She was having aged mother, who was suffering from serious ailments and she was also fighting litigation at Srinagar and there was a life threat at the instance of respondent No.4 and he has forced him not to approach the Court. On these grounds, he did not prefer the present Criminal Revision Petition well within time. On these grounds, he prays to condone the delay and entertain the Criminal Revision Petition on merits.
6. The learned counsel for respondent Nos.2 and 4 seriously contested the said application by submitting that there is an inordinate delay of 1368 days in preferring the present Criminal Revision Petition. That itself clearly goes to shows that the petitioner/complainant is not diligent and he has no respect to the orders of the Court. It is their further submission that the records clearly goes to shows that on 06.09.2011 the complaint was dismissed and the Court below by giving an opportunity to restore and again on 05.01.2012 it was dismissed and again it was restored. But, the complainant remained absent and on 27.03.2012 the complaint was dismissed. On these conduct of the complainant, it clearly goes to show that only with an intention to harass and to take revenge, such attitude has been continued. It is their further submission that no cogent and acceptable reasons have been assigned to condone the delay. On these grounds, they prayed to dismiss the application and consequently to dismiss the Criminal Revision Petition.
7. I have carefully and cautiously gone through the learned counsel appearing for the parties and perused the records.
8. The said application has been filed under Section 5 of the Limitation Act. It is also accompanying with an affidavit of the petitioner/complainant. Though during the course of argument, the learned counsel for the petitioner/complainant contended that she was fighting for divorce litigation and her mother was suffering from serious ailment and there was threat not to come to the Court. But no piece of evidence has been produced before this Court to substantiate the said contention.
9. During the course of argument, the learned counsel for respondent No.2 submitted that the complainant herself has detained illegally the mother of the complainant and as such Habeas Corpus Petition came to be filed and now falsely the said contention have been taken. That is not a matter of issue before this Court when the said matter has to be appreciated at a proper forum. But on close reading of the material which has been made available earlier the petition came to be dismissed on 06.09.2011. The same was restored and subsequently, again on 05.01.2012 the complaint was dismissed. Again it was restored and again on 27.03.2012 the complaint was dismissed. The said record indicates the conduct of the petitioner/ complainant to show that he was not diligent in conducting the case. Though the Court below has taken different view, it has rightly dismissed the application. Even the petitioner/complainant has not shown any cogent and acceptable reasons to explain the delay of 1368 days in preferring the present petition. It is well proposed preposition of law that if no cogent and acceptable reasons and evidence is produced to condone the delay, then under such circumstances no leniency can be shown. But in the instance case on hand, there is an inordinate delay of 1368 days when he has pursuing ‘B’ report by filing an application before the trial Court.
10. In the light of discussion held by me above, I am of the considered opinion that there are no cogent and acceptable reasons to condone the inordinate delay of 1368 days and as such I.A.No.1/2017 filed for condonation of delay is liable to be dismissed and accordingly, it is dismissed.
In view of the dismissal of I.A.No.1/2017, consequently the Criminal Revision Petition is also dismissed.
No order as to cost.
ssb Sd/-
JUDGE