Karnataka High Court
M/S Essel Automation vs M/S Dynametic Technologies Ltd on 27 September, 2018
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF SEPTEMBER, 2018
BEFORE
THE HON'BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY
WRIT PETITION No.40519 OF 2016 (GM-RES)
BETWEEN:
M/s. Essel Automation
Proprietory concern,
Rep. by its Proprietrix,
Smt. Lakshmi Chaitanya,
Aged about 39 years,
Having its office at
No.18, 2nd Floor, 2nd Main,
2nd Cross, Thayappa Garden,
Bilekahalli, Bannerghatta Road,
Bengaluru-560 076. ...Petitioner
(By Sri. Rajanna, Advocate)
AND:
M/s. Dynametic Technologies Ltd., (D.T.L)
A registered company,
Incorporated under the provisions
of Companies Act, 1956,
represented by its Incumbent Officer,
Mr. Sham M.R, Aged about 42 years,
Having its registered office at
Dynametic Park, Peenya,
Bengaluru-560 058. ...Respondent
(By Sri. Ajith Anand Shetty, Advocate)
W.P.No.40519/2016
2
This Writ Petition is filed under Articles 226 & 227 of
the Constitution of India read with Section 482 of Cr.P.C
praying to quash the impugned order dated:02.04.2016
passed by 27th Addl. Chief Metropolitan Magistrate in
C.C.No.18321/2014 amending the fine amount of
Rs.4,27,374/- to Rs.6,27,374/- vide Annexure-J and K and
restore the fine amount initially passed by 27th Addl. Chief
Metropolitan Magistrate in its unamended judgment
dated:15.12.2015 and the same is under consideration of the
Appellate Court regarding correctness of the conviction order
and to award the costs of the proceedings throughout.
This Writ Petition coming on for Preliminary Hearing in
'B' group this day, the Court made the following:
ORDER
The present petitioner was an accused in the Court of XXVII Addl.Chief Metropolitan Magistrate, Bengaluru, (henceforth for brevity referred to as `trial Court'), in C.C.No.18321/2014, filed by the present respondent herein as a complainant under Section 200 of Code of Criminal Procedure, for the offence punishable under Section 138 of Negotiable Instruments Act, 1881 (henceforth for brevity referred to as `N.I.Act'). After the trial, the said Court by its judgment dated W.P.No.40519/2016 3 15.12.2015, convicted the accused therein (petitioner herein) for the offence punishable under Section 138 of N.I.Act and imposed a sentence in the form of payment of fine of `4,27,374/-. Out of the fine amount, `4,20,000/- was ordered to be paid to the complainant as compensation and `7,374/- as bail bonds stand cancelled. Aggrieved by the said judgment and conviction, the present petitioner as an accused, preferred Criminal Appeal in the Court of Prl.City Civil & Sessions Judge, Bengaluru, in Criminal Appeal No.19/2016, which Court, by its order dated 8.1.2016, allowed IA.No.1 filed by the appellant before it under Section 389(1) of Code of Criminal Procedure, and stayed the operation of impugned judgment and conviction and sentence imposed by the trial Court, subject to deposit of `50,000/- out of the total fine amount of `4,27,374/- before the trial Court. W.P.No.40519/2016 4
2. When the matter was standing so, the original complainant (respondent herein), filed an application (quoting no provision of law) before the trial Court calling the said application for correction of judgment. In the said application, stating that the Court has observed that the fine amount would be double the cheque amount, which according to the complainant is `6,27,374/-, but the trial Court has imposed fine of `4,27,374/-, sought for its correction so as to show the fine amount as `6,27,374/-. The present petitioner, who was an accused in the said Court, filed his statement of objections raising various contentions and objections. However, the trial Court by its order dated 2.4.2016, allowed the application and calling the error that was crept in as a `clerical error', modified the fine amount as `6,27,374/- and also modified the amount to be payable which was originally `4,20,000/- as compensation at `6,20,000/-. It is against the said W.P.No.40519/2016 5 order of the trial Court, the petitioner/accused has challenged in this petition.
3. The argument of the learned counsel for the petitioner primarily is that the impugned order is not a speaking one.
Secondly, when the quantum of fine amount is reflected in the operative portion of the order, the same ought not to have been modified or altered even by exercising power under Section 362 of Code of Criminal Procedure.
Learned counsel for the petitioner also submitted that when the matter was seized before the Sessions Court in Criminal Appeal No.19/2016 and it had suspended the operation and execution of the sentence, the trial Court ought not to have passed the impugned order.
W.P.No.40519/20166
4. Learned counsel for the respondent in his arguments submitted that when in the main portion of the judgment, it was mentioned that the fine amount would be double the cheque amount, which, while culminating into operative portion, has come to a smaller amount, the trial Court has rightly corrected the same by exercising its power under Section 362 of Code of Criminal Procedure. He also submitted that the said mistake was purely a clerical mistake, as such, the impugned order cannot be interfered with.
5. The operative portion of the original order passed in C.C.No.18321/2014, reads as below :
" Acting under Section 265 of Cr.P.C., accused is convicted for the offence punishable under Section 138 of Negotiable Instruments Act.
Accused shall pay fine of Rs.4,27,374/. Out of the fine amount Rs.4,20,000/- is W.P.No.40519/2016 7 ordered to be paid to the complainant as compensation and Rs.7,374/- is her bail bond stands cancelled."
Calling upon the said amount shown as compensation as a clerical error, the complainant
therein had filed an application, for which, the accused had filed his detailed objections. In his objections itself, the accused has raised several contentions stating that the matter was then seized before the City Civil & Sessions Court in Criminal Appeal No.19/2016 and the said Court has stayed the operation and execution of the sentence passed by the trial Court. In such a situation, the trial Court has become functus officio, as such, it could not deal with the application.
Secondly, the objector/accused has also taken a contention that the alleged error cannot be considered as a clerical error, as such also, the Court cannot modify the same.W.P.No.40519/2016
8
6. However, as observed above, the trial Court by passing a cryptic order, has allowed the said application. The said order dated 2.4.2016 in its entirety is reproduced here below :
" Complainant absent.
Accused absent.
Counsel for accused prays for.
Obj. filed by complainant for correcting clerical error only. Said application is allowed."
A reading of the said order clearly go to show that the learned Magistrate without even considering the objections raised by the accused before him in his statement of objections, has proceeded to allow the application calling the same would be a mere correction of clerical error. In the circumstances, when the trial Court has not at all considered any objections raised by the accused/objector before it, more particularly of the stay against the said judgment of conviction being in force, which is passed in Criminal Appeal W.P.No.40519/2016 9 No.19/2016 and without even attributing the reasons as to how it has come to a conclusion that it was a mere clerical error, the said order of the trial Court cannot be considered as a reasoned one.
7. As such, keeping all other contentions raised by the petitioner herein, who is the accused in the trial Court, open for consideration by the trial Court, the order dated 2.4.2016, passed in C.C.No.18321/2014, by the learned XXVII Addl.Chief Metropolitan Magistrate, Bengaluru, allowing the interlocutory application filed by the complainant before it, is set aside and the matter is reverted to the trial Court for consideration of the said application filed by the complainant afresh in accordance with law.
Accordingly, the Writ Petition is allowed.
Sd/-
JUDGE bk/