IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF APRIL, 2019 BEFORE THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION No.887/2016 BETWEEN:
MS. VARALAKSHMI R. D/O. SRI. RANGANATHAN AGED 44 YEARS R/AT NO.743/A, R.S. MANSION 2ND MAIN, 5TH CROSS, K.N. EXTENSION TRIVENI ROAD YESHWANTHPUR BANGALORE-560 022. ... PETITIONER (BY SRI. VASANTH V. FERNANDES, ADV.) AND:
MRS. BHARATHI W/O. SRI. NARASIMHALU NAIDU AGED ABOUT 45 YEARS R/AT NO.23, I MAIN, I CROSS NEELADRI NILAYA SRINIVASA NAGAR BANGALORE. ... RESPONDENT (RESPONDENT SERVED AND UNREPRESENTED) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 CR.P.C PRAYING TO QUASH THE ENTIRE PROCEEDINGS CULMINATING IN JUDGMENT AND ORDER DATED 10.12.2015 IN CRL.A.NO.952/2014 ON THE FILE OF THE LXVI ADDL. CITY CIVIL AND S.J., (CCH-67) AT BANGALORE AS BEING VOID AB INITIO AND NON EST.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Heard learned counsel for the petitioner and perused the records. Respondent is served but unrepresented.
2. The only contention urged by the learned counsel for the petitioner is that LXVI Additional City Civil and Sessions Judge, Bangalore had no jurisdiction to entertain the appeal preferred against the judgment of acquittal in C.C.No.35419/2010 dated 13.10.2014 passed by XII Addl. Chief Metropolitan Magistrate, Bangalore. Hence, the impugned judgment and order dated 10.12.2015 passed by the LXVI Additional City Civil and Sessions Judge, Bangalore in Crl.A.No.952/2014, is non-est in the eye of law and is liable to be quashed in exercise of the jurisdiction under Section 482 of Cr.P.C.
3. The brief facts of the case are as follows:
The respondent herein filed a private complaint under Section 200 of Cr.P.C. seeking action against the petitioner (hereinafter referred to as ‘accused’) for the alleged offence punishable under Section 138 of Negotiable Instruments Act, (for short ‘N.I. Act’). The complaint was registered in C.C.No.35419/2010. By order dated 13.08.2014 the XII Addl. Chief Metropolitan Magistrate, Bangalore dismissed the said complaint and acquitted the accused of the offence punishable under Section 138 of NI Act. The respondent/complainant carried the matter in Crl.A.No.952/2014 before the LXVI Addl. City Civil and Sessions Judge. By the impugned judgment and order dated 10.12.2015, the learned appellate judge allowed the appeal and convicted the accused for the offence punishable under Section 138 of NI Act and sentenced her to pay fine of Rs.3,25,000/-.
4. The question as to the maintainability of an appeal against the judgment of acquittal is no more res-integra, in view of the authoritative pronouncement of the Hon’ble Supreme Court in the case of Damodar S Prabhu Vs. Sayed Bagalal H, reported in (2010) 5 Supreme Court Cases 663 wherein it is held as under:
“20. It may be noted here that Section 143 of the Act makes an offence under Section 138 triable by a Judicial Magistrate, First Class (JMFC). After trial, the progression of further legal proceedings would depend on whether there has been a conviction or an acquittal.
In the case of conviction, an appeal would lie to the Court of Sessions under Section 374 (3) (a) Cr.P.C.; thereafter a revision to the High Court under Sections 397/401 Cr.P.C. and finally a petition before the Supreme Court, seeking special leave to appeal under Section 136 of the Constitution of India. Thus, in case of conviction there will be four levels of litigation.
In the case of acquittal by JMFC, the complainant could appeal to the High Court under Section 378(4) Cr.P.C., and thereafter for special leave to appeal to the Supreme Court under Article 136. In such an instance, therefore, there will be three levels of proceedings.”
5. This Court in Crl.P.No.6072/2014 dated 24.02.2015 has followed the above precedent. In the said case a contention was urged to the effect that the complainant in Section 138 of N.I. ACT, is a “victim” within the meaning of the proviso to Sec. 372 of Cr.P.C. and therefore the complainant being a victim as defined under Section 2(wa) of Cr.P.C. is entitled to maintain an appeal before the Sessions Court. But the said contention has been negated by this Court following the exposition of law by the Hon’ble Supreme Court in the above decision. In view of this settled legal position, the order passed by the learned Sessions Judge being manifestly without jurisdiction and without authority of law is liable to be quashed.
Accordingly, petition is allowed. The impugned order dated 10.12.2015 passed by the LXVI Additional City Civil and Sessions Judge in Crl.A.No.952/2014 is quashed.
The complainant is at liberty to prefer a separate appeal against impugned order under Section 378 Cr.P.C. in accordance with law, in which event the time consumed before this Court shall stand excluded in computing the period of limitation.
Sd/- JUDGE JS/-