Karnataka High Court
Smt. Shanthi K vs E.M. Rebello on 5 September, 2024
Author: Pradeep Singh Yerur
Bench: Pradeep Singh Yerur
-1-
NC: 2024:KHC:36643
CRL.RP No. 1238 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE PRADEEP SINGH YERUR
CRIMINAL REVISION PETITION NO.1238 OF 2016
BETWEEN:
SMT.SHANTHI K.
W/O.SRI GOPINATH RAO
AGED ABOUT 49 YEARS
R/AT 26/A , 2ND CROSS
NANJAMMA LAYOUT
MANORAYANA PALAYA
R.T.NAGAR POST
BENGALURU-560 032
...PETITIONER
(BY SRI HARSHITH V., FOR
SRI MAHESH M., ADVOCATES)
AND:
E.M.REBELLO
S/O.LATE FRANK X REBELLO
AGED ABOUT 59 YEARS
R/AT HOLY ROSARY COTTAGE
MOODUKUDRU, KALYANAPURA
Digitally UDUPI TALUK & DISTRICT-576 101
signed by B ...RESPONDENT
LAVANYA (BY SRI HARISH B.S., FOR
Location: SRI B.S.PRASAD, ADVOCATES)
HIGH
COURT OF THIS CRIMINAL REVISION PETITION IS FILED UNDER
KARNATAKA SECTION 397 READ WITH SECTION 401 CR.PC. PRAYING TO
SET ASIDE THE JUDGMENT DATED 04.06.2016 PASSED IN
CRL.A.NO.4/2014 BY THE PRINCIPAL SESSIONS JUDGE,
UDUPI, CONVICTING THE PETITIONER FOR THE OFFENCE
PUNISHABLE UNDER SECTION 138 OF THE N.I.ACT AND
SENTENCING HER TO PAY FINE OF RS.2,10,000/- AND IN
DEFAULT TO PAY THE FINE AMOUNT, THE ACCUSED SHALL
UNDERGO SIMPLE IMPRISONMENT FOR A PERIOD OF SIX
-2-
NC: 2024:KHC:36643
CRL.RP No. 1238 of 2016
MONTHS AND OUT OF FINE AMOUNT, RS.2,00,000/- TO BE
PAID TO THE COMPLAINANT AS COMPENSATION AND
REMAINING AMOUNT OF RS.10,000/- SHALL PAY PAID TO THE
STATE AS PENALTY AND CONFIRM THE JUDGMENT OF
ACQUITTAL DATED 04.12.2013 PASSED IN CC.NO.6440/2007
BY THE PRINCIPAL CIVIL JUDGE AND JMFC., UDUPI.
THIS PETITION COMING ON FOR FINAL HEARING, THIS
DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE PRADEEP SINGH YERUR
ORAL ORDER
This petition is filed by the petitioner-accused challenging the judgment of conviction and order on sentence dated 04.06.2016 passed in Crl.A.No.4/2014 by the Principal Sessions Judge, Udupi convicting the petitioner-accused for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short, 'the N.I.Act') and sentencing her to pay a fine of Rs.2,10,000/- and in default to pay the fine amount, the accused shall undergo Simple Imprisonment for a period of six months. Out of the fine amount, a sum of Rs.2,00,000/- was ordered to be paid to the complainant as compensation and remaining amount of Rs.10,000/- to be paid to the State as penalty.
-3-
NC: 2024:KHC:36643 CRL.RP No. 1238 of 2016
2. Brief background of the case is as under:
The complainant lodged a complaint under Section 200 of Cr.PC. against the accused for the offence punishable under Section 138 of the N.I.Act stating that the accused was carrying on a chit business and one Padmalochana R. was a member of the chit and the accused was indebted to the said Padmalochana R., as such, she requested the complainant to provide financial assistance and borrowed Rs.2,00,000/-, which was paid by the complainant and in discharge of the said debt, the accused got issued a cheque bearing No.2050210 for a sum of Rs.2,00,000/- in favour of the complainant drawn on State Bank of India, R.T.Nagar Branch.
2.1 On presentation of the said cheque for encashment, the complainant received an endorsement 'funds insufficient' in the account of the accused, pursuant to which, the complainant got issued a legal notice dated 22.08.2007 through his counsel calling upon the accused to repay the dishonoured cheque amount within 15 days. -4-
NC: 2024:KHC:36643 CRL.RP No. 1238 of 2016 The notice was returned as unclaimed. Therefore, the notice came to be held to be sufficient and the cheque amount was not paid, which perforced the complainant to register a complaint under Section 200 of Cr.PC. for the offence punishable under Section 138 of the N.I.Act.
2.2 Upon issuance of summons from the trial Court, the accused appeared and pleaded not guilty and claimed to be tried.
2.3 In order to establish and prove the case, the complainant examined himself as PW.1 and got marked documents as Exs.P1 to P6(a). After recording of the evidence of the complainant, the statement of the accused was recorded under Section 313 of Cr.PC. The accused denied the incriminating statement and evidence made against her. The accused got examined a witness as DW.1 and herself as DW.2.
2.4 On hearing the arguments of both parties, the trial Court, being satisfied with the materials placed on record by the accused, acquitted the accused. -5-
NC: 2024:KHC:36643 CRL.RP No. 1238 of 2016 2.5 The complainant, being aggrieved by the order of acquittal, preferred an appeal before the Appellate Court i.e. the Principal Sessions Judge, Udupi District, Udupi in Crl.A.No.4/2014 under Sections 378(1) and (3) of Cr.PC.
2.6 Though it is stated at para-5 of the impugned judgment passed by the Appellate Court that pursuant to the notice, the respondent-accused appeared through her Advocate, but, it is submitted by learned counsel for petitioner-accused that the accused was not served with the notice and the order sheet of the Appellate Court clearly shows that an application being filed for taking out notice in respect of the accused by way of substituted service through newspaper publication in "Indian Express", English daily newspaper, came to be allowed on 09.12.2015, despite which, the accused remained absent and all through the proceedings before the Appellate Court, the accused was shown as 'Absent' till the pronouncement of the judgment. Hence, it can be safely -6- NC: 2024:KHC:36643 CRL.RP No. 1238 of 2016 concluded that the accused remained absent and the judgment was rendered in her absence, convicting her for the offence punishable under Section 138 of the N.I.Act and sentencing her to pay a fine of Rs.2,10,000/- and in default of payment of fine, she shall undergo Simple Imprisonment for a period of six months.
2.7 Being aggrieved by the said judgment of conviction and order on sentence passed by the Appellate Court, the petitioner-accused has preferred the present revision petition.
3. It is the vehement contention of learned counsel for petitioner -accused that the judgment of conviction and order on sentence passed by the Appellate Court is illegal, perverse, erroneous and without jurisdiction, which is opposed to the specific provision as contemplated under Cr.PC. On these grounds, it is liable to be set-aside. It is also vehemently contended by learned counsel that the Appellate Court has grossly erred in entertaining the appeal under the provisions of Sections 378(1) and (3) of -7- NC: 2024:KHC:36643 CRL.RP No. 1238 of 2016 Cr.PC., whereas such provision does not provide any remedy for appeal on the judgment of acquittal rendered by the trial Court.
3.1 Learned counsel contends that the provision of law to challenge the judgment of acquittal would be under Section 378(4) of Cr.PC., which would lie only to the High Court and not before the Sessions Court. Therefore, the proceeding initiated by the complainant before the Sessions Court invoking the provisions of Sections 378(1) and (3) of Cr.PC. is unsustainable and the same is liable to be set-aside, as no such appeal could be filed before the Sessions Court, when the law contemplates under Section 378(4) of Cr.PC that appeal is to be filed before the High Court.
3.2 It is also vehemently contended by learned counsel for petitioner-accused that before the Appellate Court, no notice was served to the accused and the paper publication taken was not within the notice of the petitioner-accused. Therefore, he has not appeared before -8- NC: 2024:KHC:36643 CRL.RP No. 1238 of 2016 the Appellate Court, which placed him absent and the Appellate Court rendered the judgment of conviction and order on sentence in her absence without application of mind.
3.3 It is contended by learned counsel for petitioner- accused that the petitioner-accused came to know about the appeal, when the Police authorities came and made enquiries with the committal warrant. It is vehemently contended by learned counsel that the provisions of law invoked by the complainant while preferring an appeal before the Appellate Court, is not the correct provisions. The remedy available was to approach this Court by filing an appeal under Section 378(4) of Cr.PC., which has not been adopted by the complainant and has gone before the Sessions Court, which does not have jurisdiction to entertain the appeal much less passing the judgment of conviction against the accused. On these grounds, learned counsel for petitioner-accused contends that the present revision petition requires to be allowed and the judgment -9- NC: 2024:KHC:36643 CRL.RP No. 1238 of 2016 rendered by the Appellate Court deserves to be set-aside. Consequently, the petitioner-accused deserves to be acquitted of all the charges for the offences punishable under Section 138 of the N.I.Act.
3.4 Learned counsel for petitioner-accused relies upon the decision of the Coordinate Bench of this Court in Crl.RP.No.1288/2018 C/w. Crl.RP.No.733/2019, wherein the complainant, being aggrieved by the judgment of acquittal, preferred a Criminal Appeal before the Sessions Court and the learned Sessions Judge had convicted the accused for the offence punishable under Section 138 of the N.I.Act and on revision petition being filed by the accused challenging the judgment of conviction rendered by the Appellate Court on similar ground that no jurisdiction to the Appellate Court to entertain such an appeal, this Court allowed the petition and set-aside the judgment of conviction rendered by the Appellate Court.
3.5 Learned counsel has also relied upon a circular dated 17.04.2023 issued by the Registrar (Judicial) by the
- 10 -
NC: 2024:KHC:36643 CRL.RP No. 1238 of 2016 order of Hon'ble the Chief Justice, wherein it is clearly held that - "in respect of an appeal arising out of an order of acquittal under the N.I.Act, the complainant can challenge it only before the High Court as per Section 378(4) of Cr.PC. after obtaining special leave to appeal, and not before the Sessions Court".
4. Having heard learned counsel for petitioner in detail and on perusal of the decision relied on and the circular placed by him, it is apparently clear and not in dispute and there is no ambiguity with regard to provisions of law in respect of the appeals to be preferred in case of acquittal. Section 378(4) of Cr.PC. reads as under:
"378. Appeal in case of acquittal xxxxxxxxxxxxxx (4) If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court."
- 11 -
NC: 2024:KHC:36643 CRL.RP No. 1238 of 2016
5. In view of the above, I am in agreement with the contentions put-forth by learned counsel for petitioner- accused that on an judgment of acquittal rendered by the trial Court for the offence punishable under Section 138 of the N.I.Act, the remedy available to the aggrieved party namely, the complainant would be to invoke the provision of Section 378(4) of Cr.PC. by preferring an appeal before this Court (i.e. the High Court). There is no provision i.e. shown or provided to the complainant in the Code of Criminal Procedure to prefer an appeal before the Sessions Court on the judgment of acquittal passed by the trial Court.
6. When such being the case, the question of complainant approaching the Appellate Court to prefer an appeal on the judgment of acquittal passed by the trial Court, is far fetched, illegal, perverse and the same is not maintainable. The Appellate Court ought to have taken these aspects into consideration even though there was no contest on behalf of the petitioner-accused. When there is
- 12 -
NC: 2024:KHC:36643 CRL.RP No. 1238 of 2016 no jurisdiction vested with the Court to deal with the matter, an order passed by such a Court would be an order in nullity. Therefore, the order i.e. passed by the Appellate Court convicting the petitioner-accused for the offence punishable under Section 138 of the N.I.Act and sentencing her to pay a sum of Rs.2,10,000/- and in default to pay fine amount, the accused shall undergo Simple Imprisonment for a period of six months and out of the fine amount, Rs.2,00,000/- was ordered to be paid to the complainant as compensation and the remaining amount of Rs.10,000/- shall be paid to the State as penalty, is illegal as the same was not maintainable.
7. Under the circumstance and the discussion made hereinabove, I pass the following:
ORDER
i) This Criminal Revision Petition is allowed;
ii) The judgment of conviction and order on sentence dated 04.06.2016 passed in Crl.A.No.4/2014 by the Principal Sessions Judge, Udupi convicting the petitioner-accused for the offence punishable
- 13 -
NC: 2024:KHC:36643 CRL.RP No. 1238 of 2016 under Section 138 of the Negotiable Instruments Act, 1881 and sentencing her to pay a fine of Rs.2,10,000/- and in default to pay the fine amount, the accused shall undergo Simple Imprisonment for a period of six months. Out of the fine amount, a sum of Rs.2,00,000/- to be paid to the complainant as compensation and remaining amount of Rs.10,000/- to be paid to the State as penalty, is hereby set-aside;
iii) The judgment dated 04.12.2013 passed in CC.No.6440/2007 by the Principal Civil Judge and JMFC, Udupi in acquitting the petitioner-accused for the offence punishable under Section 138 of the N.I.Act, is confirmed;
iv) The petitioner-accused is acquitted of all the charges for the offence punishable under Section 138 of the N.I.Act;
v) No order as to costs.
Sd/-
(PRADEEP SINGH YERUR)
JUDGE
LB
List No.: 1 Sl No.: 88