Karnataka High Court
Manish Gajendra vs M N Arjun Gowda on 6 March, 2018
Author: R.B Budihal
Bench: R.B Budihal
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 06TH DAY OF MARCH, 2018
BEFORE
THE HON'BLE MR.JUSTICE BUDIHAL R.B.
CRIMINAL PETITION NO.8856/2017
BETWEEN:
Manish Gajendra
S/o.Late.K.Gajendra
Aged 29 years
R/at No.8/22, 1st Cross
Vasanthnagar
Bengaluru-52
... Petitioner
(By Sri.Prakash.M.H, Adv.,)
AND:
M.N.Arjun Gowda
S/o.Late K.N.Nage Gowda
Aged 38 years
R/at No.463/G, 12th Main Road
RMV Extension
Bengaluru-80
...Respondent
(By Sri.M.T.Nanaiah, Sr.Advocate for
Smt.Rachita Nanaiah, Adv.,)
This Criminal Petition is filed Under Section 482 of
Cr.P.C praying to quash the order Dated 27.09.2017 passed
by the 55th Additional City Civil and Sessions Judge, at
Bengaluru in Crl.R.P.No.851/2015 and further to declare
that the proceeding subsequent to the Lok Adalath award
2
dated 06.04.2015 held in C.C.No.32216/2014 on the file of
XV Additional Chief Metropolitan Magistrate at Bengaluru as
illegal.
This criminal petition coming on for admission this
day, the Court made the following:
ORDER
The above petition is filed by the petitioner/accused under Section 482 of Cr.P.C. praying the Court to quash the order of the LV Additional City Civil and Sessions Judge, ordering to issue the FLW as against the petitioner.
2. Heard the arguments of the learned counsel appearing for the petitioner and also the learned senior counsel appearing for the respondent/ complainant.
3. Brief facts leading to the case is, complainant filed the complaint against the petitioner in the petition alleging that petitioner was well acquainted to him and owing to some financial constraints he has 3 approached respondent and sought financial assistance of Rs.5,00,000/-. It is further alleged that hand loan was given and the petitioner assured the repayment of the said loan amount within a short period and further for the repayment of the said amount issued post dated cheques.
4. It is further alleged that when the cheques were presented for encashment they were dis-honoured for the reason 'insufficient funds'. Then the demand notice was issued and even thereafter the petitioner since failed to pay the amount, private complaint came to be filed for the alleged offences under Section 138 of Negotiable Instruments Act.
5. Subsequently, the matter was referred to Lok Adalath, and the petitioner/accused and respondent/ complainant filed the joint memo before the Lok Adalath and perusing the joint memos and as the parties 4 admitted the joint memo even before the Lok Adalath and the petitioner herein agreed before the Lok Adalath to pay the amount within six months, the matter was ended by way of settlement on the basis of joint memo.
6. Subsequently as the amount was not paid, the complainant filed the execution petitions. The respondent/complainant filed applications before the very Magistrate Court informing the court that the amount was not paid by the accused as per the terms of the settlement before the Lok Adalath. Then FLW came to be issued by the JMFC Court as against the petitioner herein. Being aggrieved by the same the petitioner is before this Court.
7. The petitioner/accused preferred the Revision Petition before the District and Sessions Court challenging the legality and correctness of the procedure adopted by the criminal Court. But the Revision Petition 5 came to be rejected. Being aggrieved by the same the petitioner/accused is before this Court.
8. Heard the learned counsel appearing for the petitioner/accused and also the learned senior counsel appearing for the respondent/complainant.
9. Learned counsel for the petitioner while arguing the case submitted that though the settlement amounts to a decree executable but the procedure adopted by the JMFC Court for issuing the FLW as against the petitioner is not correct. He submitted that the decrees have to be executed before the Civil Court. In this connection, learned counsel relied upon the decision of the Hon'ble Apex Court reported in (2012) 2 SCC 21 in the case of K.N. Govindan Kutti Vs. C.D. Shajis. He also relied upon another decision of this Court dated 17.04.2017 referred in the criminal petition No. 1058/2017 connected with other petitions. Hence, 6 he submitted to allow the petition and to set aside the order passed by the Magistrate Court.
10. Per contra, learned counsel appearing for the respondent/complainant submitted that giving liberty to the respondent/complainant that he can move before the Civil Court for execution of the said orders, petition can be disposed off in view of the principle enunciated in the aforesaid decisions.
11. Perused the grounds urged in the petition and also considered the submission made by the learned counsel on both sides, so also the principles in above cited two decisions. In view of the same, the procedure adopted by the learned Magistrate entertaining the application and issuance of FLW is not correct. Therefore, the order passed in the petition, which is challenged is hereby set aside. But further liberty is given to the respondent/complainant that he 7 can execute the decree by filing the appropriate proceedings before the Civil Court.
With these observations the petition is disposed off.
Sd/-
JUDGE BVK