Bangalore District Court
Sreerama Naidu vs D.Ramana Reddy on 3 April, 2017
IN THE COURT OF THE LXVIII ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE, BENGALURU CITY (CCH-69)
Dated this the 3rd day of April 2017
:PRESENT:
Sri.Shivaji Anant Nalawade, B.Com., LL.B.(Spl.)
LXVIII Addl. City Civil and Sessions Judge,
Bengaluru City.
CRIMINAL REVISION PETITION No.262/2016
PETITIONER/ Sreerama Naidu
COMPLAINANT : S/o G.Krishnappa Naidu,
Aged about 53 years,
Residing at 2nd Cross,
Shivashakthi Nagar,
Chunchaghatta Main Road,
Konanakunte,
Bengaluru - 560 062.
(By Sri.B.L.Lingaraju, Advocate)
- Versus -
RESPONDENT/ D.Ramana Reddy
ACCUSED: S/o Krishna Reddy,
Aged about 45 years,
Residing at No.1113/17,
16th Cross, Ganapathipura,
Konanakunte,
Bengaluru - 560 062.
2 Crl.R.P.262/2016
ORDER ON MAIN PETITION
This revision petition is filed by the
petitioner/complainant under Sec.397 Cr.P.C. praying this
court for setting aside the order passed by XVI Addl.Chief
Metropolitan Magistrate Court, Bengaluru in
C.C.9720/2014 dated 21-11-2015.
2. It is the case of revision petitioner that, he has
lodged a private complaint against the respondent under
Sec.138 of Negotiable Instruments Act before the XVI Addl.
City Metropolitan Magistrate Court, Bengaluru has taken
cognizance and kept for recording sworn statement,
thereafter sworn statement came to be recorded and court
has registered the case against the respondent in
C.C9720/2014 and issued summons to the accused,
accused appeared on summons and he has been enlarged
on bail, thereafter the XVI Addl. City Metropolitan
Magistrate Court, Bengaluru has framed accusation under
Sec.138 of Negotiable Instruments Act and read-over the
same to the accused, accused pleaded not guilty and
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claimed to be tried and thereafter case is posted for
complainant's evidence. During the pendency of this case,
there was a compromise between the parties and accused
has agreed to pay Rs.46,000/- in full and final settlement
and petitioner has agreed for the same and Joint
Compromise Petition came to be filed by both the petitioner
and respondent on 17-04-2015 and as per the
Compromise Petition, Rs.10,000/- was agreed to be paid
on 11-05-2015 and the court has posted the matter on 11-
05-2015 for payment of first installment and on 11-05-
2015 the respondent/accused remained absent and court
has issued fine levy warrant to accused/respondent
thereafter on 10-06-2015, 04-07-2015 and 10-08-2015 the
accused has not complied the compromise order and failed
to pay the agreed amount. The XVI Addl. City Metropolitan
Magistrate Court, Bengaluru on 21-09-2015 ordered to
issue FLW open warrant return within two months and
petitioner/complainant has paid the process to issue FLW
and the court has not given any date of hearing. It is the
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case of petitioner that as the date of further hearing was
not given by the learned Magistrate, the petitioner was
under the impression that FLW issued to the accused will
be served and he will pay the amount as agreed before the
learned Magistrate and on that impression the petitioner
verified the office of the court on 30-01-2016 in the case
and on going through the order sheet in the case, the
petitioner shocked to know that though FLW was issued to
the respondent/accused returnable by two months, the
status of the service of FLW was not mentioned by the
court officials in the order sheet and without knowledge
about whether the said FLW was served or returned, the
learned Magistrate blindly proceeded to dismiss the said
case holding that "complainant absent, complainant failed
to secure the accused not secured from 2014, several
hearing dates. Hence no purpose will be served by keeping
this case long pending. The parties might have
compromised this case. Hence the complainant is not
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turned up for taking effective steps. Hence the complaint
is dismissed for not taking proper steps and for default."
3. The petitioner being aggrieved by the order
passed by the XVI Addl. City Metropolitan Magistrate
Court, Bengaluru dated 21-11-2015, came in revision on
the following among other grounds;
The order of the trial court dated 21-11-2015
dismissing the case for default is capricious, vexatious,
perverse and liable to be quashed in limine. The order
under revision is against the principles of natural justice
and bad in law and liable to be quashed. The reasons
given by the trial court while passing the impugned order
are not proper and convincing. The finding of the trial
court is bad in law as because both the parties of this
petition ended the litigation by filing Joint Memo before the
court on 17-04-2015 itself. When that is the case, the
question of securing the accused since 2014 as held by the
learned Magistrate does not arise at all. The findings of
the trial court is bad in law because the trial court has
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held that the complainant has failed to take proper steps.
The said finding is also bad as because the complainant
took steps to issue FLW and the learned Magistrate has
issued FLW on 21-09-2015 by ordering that FLW open
warrant returnable within two months was issued. The
learned Magistrate without properly observing the earlier
order sheet orders, blindly proceeded to pass the impugned
order, which is very much bad and liable to be set aside.
The trial court has failed to look into the matter that there
is default on the part of the accused in not complying with
the compromise and it is the accused/respondent has to
pay the amount as per the agreed terms and even though
the petitioner/complainant has taken steps the court has
erroneously dismissed the case as per the impugned order.
On these and among other grounds the petitioner prayed
for setting aside the order passed by the trial court by
allowing the petition.
4. The revision petition is filed before the Prl. City
Civil and Sessions Judge, Bengaluru and the same was
7 Crl.R.P.262/2016
numbered as Crl.R.P.262/2016 and made over to this court
for disposal of the same according to law. After receipt of
the records, notice was issued to the respondent,
respondent in spite of service of notice remained absent.
5. Heard the arguments advanced by the learned
counsel for petitioner in length.
6. The following points would arise for my
determination:
1. Whether the order passed by the trial
court dated 21-11-2015 in
C.C.9720/2014 is contrary to law and
liable to be interfered in this revision?
2. What order?
7. My findings on the above points are as
follows:
Point No.1 : In the AFFIRMATIVE;
Point No.2 : As per final order
for the following :
8 Crl.R.P.262/2016
REASONS
8. POINT NO.1: It is the case of the petitioner
that he has lodged a private complaint under Sec.138
Negotiable Instruments Act against the respondent before
the trial court and trial court has taken cognizance and
posted the case for sworn statement, thereafter sworn
statement came to be recorded and trial court has
registered the case in C.C.9720/2014 and issued
summons to the accused, accused appeared on summons
and enlarged on bail and thereafter accusation is framed
against the accused and read-over the same to the
accused, accused pleaded not guilty and claimed to be
tried. Thereafter the matter was referred to Lok Adalath
and matter was compromised between the parties and
petitioner has agreed to receive Rs.46,000/- in full and
final settlement and Joint Compromise Petition came to be
filed and case is disposed off before the Lok Adalath and as
per the terms of the compromise the first installment of
Rs.10,000/- has to be paid by the respondent on 11-05-
9 Crl.R.P.262/2016
2015 and case was posted on 11-05-2015 and on that day
the respondent/accused has not paid the installment
amount and thereafter the respondent/accused has not
paid the subsequent installments also, so the trial court as
per the instance of the petitioner issued FLW against the
respondent/accused and on 21-09-2015 trial court has
issued open FLW against the accused returnable within
two months and court has not given date and thereafter
the trial court has taken the case on board on 21-11-2015
and without mentioning what happened to the FLW issued
against the respondent/accused, has noted that
"complainant absent, complainant failed to secure the
accused not secured from 2014, several hearing dates,
hence no purpose will be served by keeping this case long
pending. The parties might have compromised this case.
Hence, the complainant is not turned up for taking
effective steps. Hence the complainant is not turned up for
taking effective steps."
10 Crl.R.P.262/2016
9. The petitioner has produced the certified copy
of Order Sheet in C.C.9720/2014 and the same prima-
facie goes to show that on 17-01-2014
complainant/petitioner has lodged private complaint under
Sec.138 of Negotiable Instruments Act and on that day
trial court has taken cognizance and kept the case for
recording the sworn statement and on 22-04-2014 trial
court has recorded sworn statement and thereafter
registered the case in C.C.9720/2014 for the offence under
Sec.138 of Negotiable Instruments Act. Thereafter, the
summons were issued to the accused/respondent and
accused appeared and enlarged on bail and thereafter on
17-04-2015 both the complainant and accused have filed
Memo for referring the matter to Lok Adalath and the
matter was referred to Lok Adalath and before the Lok
Adalath both the petitioner and respondent were present
and filed Joint Memo stating that the complainant and
accused have settled their matter amicably and accused
has agreed to pay Rs.46,000/- as full and final settlement
11 Crl.R.P.262/2016
out of cheque amount of Rs.79,000/-. Further accused
has agreed to pay Rs.46,000/- in 4 installments i.e., 1st
installment of Rs.10,000/- on 11-05-2015, 2nd installment
of Rs.12,000/- on 10-06-2015, 3rd installment of
Rs.12,000/- on 10-07-2015 and 4th installment of
Rs.12,000/- on 10-08-2015 and the matter was settled
before the Lok Adalath and thereafter the trial court has
kept the case on 11-05-2015 for payment of 1st
installments and on that day the accused has not
appeared and the court has issued FLW and thereafter
also accused has not paid the subsequent installment and
court has issued FLW against the accused and on 21-09-
2015 complainant was present, accused absent and court
has issued open FLW against the accused returnable
within Two months and further the order sheet discloses
that the complainant has paid the P.F. and FLW came to
be issued, court has not given any date and on 21-11-2015
trial court has taken the case on board and wherein the
trial court has noted that "complainant absent,
12 Crl.R.P.262/2016
complainant failed to secure the accused not secured from
2014, several hearing dates, hence no purpose will be
served by keeping this case long pending. The parties
might have compromised this case. Hence, the
complainant is not turned up for taking effective steps.
Hence the complainant is not turned up for taking effective
steps. Hence complaint is dismissed for not taking proper
steps and for default".
10. Perusal of the entire certified copy of the order
sheet produced by the petitioner in C.C.97202/2014,
clearly goes to show that the matter was compromised
between the parties and Joint Compromise Memo came to
be filed on 17-04-2014 and matter was disposed off and
the accused has agreed to pay Rs.46,000/- in 4
installments and 1st installment was due on 17-04-2015
and case was posted on that day and on that day accused
has not paid the installment so FLW issued, thereafter also
the accused has not paid subsequent 3 installments and
FLW came to be issued and on 21-09-2015 complainant
13 Crl.R.P.262/2016
was present and trial court has issued FLW open warrant
returnable within two months and not given any date and
thereafter on 21-11-2015 case is taken on board and the
case came to be dismissed noting that the complainant has
not taken effective steps. Perusal of the entire order sheet
goes to show that, on every date complainant is present
and taken steps and on 21-09-2015 also steps was taken
and FLW open warrant returnable within two months came
to be issued and no date was given and the trial court has
taken the case on board on 21-11-2015 and as no date
was given, the complainant was not appeared and the trial
court has not mentioned anything regarding the execution
of FLW open warrant and mentioned that the complainant
failed to secure the accused not secured from 2014, several
hearing date, hence no purpose will be served by keeping
this case long pending, the parties must have
compromised this case, hence the complainant has not
turned up for taking effective steps, hence the complaint is
dismissed for not taking proper steps and for default and
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the said order of the trial court is contrary to law, liable to
be interfered. The trial court without verifying its earlier
order sheet has wrongly mentioned that the complainant
has failed to secure the accused since 2014. On the other
hand the matter was compromised between the parties
before the Lok Adalath and Joint Compromise Petition
came to be filed on 17-04-2015 and the matter was
disposed off before the Lok Adalath and as per the orders
passed before the Lok Adalath the accused has not
complied the order, so FLW came to be issued and on
subsequent dates complainant was present and taken
steps on 21-09-2015 as next date was not given the
complainant was not appeared on 21-11-2015 and on 21-
09-2015, FLW open warrant was issued returnable within
two months and the case was called out by the court on
21-11-2015 and on that day trial court has not mentioned
regarding the warrant issued on 21-09-2015 and passed
the impugned order which is contrary to law and liable to
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be interfered in this revision. Hence, I answered the above
point in the AFFIRMATIVE.
11. POINT No.2: In view of my findings point No.1,
I proceed to pass the following:
ORDER
The Revision Petition filed by the Revision Petitioner under Sec.397 of Cr.P.C. is allowed.
The impugned order dated 21-11-2015 passed in C.C.9720/2014 by the learned XVI Addl. City Metropolitan Magistrate Court, Bengaluru, dismissing the case for default is set-aside. The C.C.9720/2014 is restored, permitting the petitioner to prosecute the matter as prayed in the petition.
Office to send the copy of this order to the trial court.
(Dictated to the Judgment Writer, transcribed by her, corrected, signed and then pronounced by me in the open court on this the 3rd day of April, 2017).
(SHIVAJI ANANT NALAWADE) LXVIII Addl. City Civil and Sessions Judge, Bengaluru City.