Karnataka High Court
Smt G Kamala vs Umesh Shetty on 9 August, 2018
Author: S.Sujatha
Bench: S.Sujatha
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF AUGUST, 2018
BEFORE:
THE HON'BLE MRS. JUSTICE S.SUJATHA
CRIMINAL REVISION PETITION No.46/2011
BETWEEN:
SMT.G.KAMALA
W/O H.N.SHIVAMARI GOWDA
AGED 37 YEARS
R/O KEERTHI NIVASA
PWD OFFICE ROAD,
LAKSHMI THEATER CROSS
NEW PET, ANEKAL TOWN
BANGALORE DISTRICT ... PETITIONER
[BY SRI PAVAN SAGAR, ADV. FOR
SRI P.PRASANNA KUMAR, ADV.]
AND:
UMESH SHETTY
S/O LATE VITTAL SHETTY
AGED 37 YEARS
R/O RATHI MAHAL
KUTHAPADY SANNA MANE
GARADI ROAD, KUTHAPADY
UDUPI ...RESPONDENT
[BY SRI M.J.ALVA, ADV.)
THIS CRIMINAL REVISION PETITION FILED UNDER
SECTION 397 R/W 401 CR.P.C PRAYING TO SET ASIDE THE
ORDER DATED 14.05.2010 PASSED BY THE PASSED BY THE III
ADDL.C.J. (JR.DN.) AND JMFC, UDUPI IN C.C.NO.6432/07 AND
ORDER DATED 01.12.2010 PASSED IN CRL.RP.NO.53/2010 BY
THE P.O., FTC, UDUPI.
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THIS PETITION COMING ON FOR HEARING, THIS DAY,
THE COURT MADE THE FOLLOWING:-
ORDER
This Revision Petition is filed by the accused/petitioner calling in question the legality and correctness of the Judgment and order passed by the Fast Track Court, Udupi (Sessions Judge) in Crl. Revision Petition No.53/2010 whereby the order of the III Addl. Civil Judge (Jr.Dn) and JMFC at Udupi in CC No.6432/2007 has been set-aside, restoring the complaint filed by the respondent-complainant in PC No.643/2007 and CC No.6432/2007 to file.
2. The respondent herein had filed a private complaint on the file of the learned JMFC, Udupi against the petitioner/accused alleging commission of offence punishable under Section 138 of the Negotiable Instruments Act, 1881 ('Act' for short). It was alleged that the petitioner had approached the respondent/complainant and sought for hand loan of -3- Rs.30 lakhs and accordingly the complainant has paid the sum of Rs.30 lakhs to the accused on 16.1.2006 and towards the discharge of the said liability, the accused has issued the cheque bearing No.439685 dated 15.7.2007 drawn on Syndicate Bank, Anelkal, but the said cheque, on presentation, came to be dishonoured. The learned Magistrate had taken cognizance of the offence and ordered to register the case. Thereafter learned Magistrate was pleased to issue summons to the petitioner and petitioner entered appearance. The said complaint came to be dismissed for non-prosecution on 14.5.2010 when the matter was listed for cross examination of the complainant. Aggrieved by the said order of dismissal, complainant preferred revision petition under Section 397 of the Cr.P.C. before the learned Sessions Judge, Udupi, who allowed the revision petition setting aside the order of dismissal passed by the learned Magistrate -4- and the complaint was restored to file. Aggrieved by the same, accused has filed this revision petition.
3. Learned counsel for the respondent at the outset raised a preliminary objection regarding the maintainability of the revision petition under Section 397 Cr.P.C. against the order passed by the learned Sessions Judge under Section 397 of Cr.P.C. Inviting the attention of the court to Section 397(3) of Cr.P.C., learned counsel submitted that no second Revision Petition is maintainable against the order passed under Section 397 of Cr.P.C. In addition to this preliminary objection, arguments were also addressed by the respondent/complainant on the jurisdiction of the learned Sessions Judge in entertaining the revision petition. Before adverting to the other points, it is appropriate for this court to first examine the maintainability of the Revision Petition under Section -5- 397 of Cr.P.C. against the order passed by the learned Sessions Judge under Section 397 of Cr.P.C.
4. Learned counsel appearing for the petitioner placing reliance on catena of Judgments submitted that revision is maintainable before this court against the order of the Learned Sessions Judge passed U/s. 397 of Cr.P.C. It was argued that the order of dismissal for non-prosecution passed by the learned Magistrate tantamounts to an order under Section 256 of Cr.P.C. against which appropriate remedy was to file an appeal in accordance with law. Learned Sessions Judge had no jurisdiction to entertain and allow the Revision Petition, setting aside the order of dismissal.
5. Having heard the learned counsel for the parties, first it is apt to refer to the authorities cited by the Learned Counsel for the petitioner. -6-
i) In the case of Dandapani Pala and others -v-
Madan Mohan Pala and others (1976 Crl.L.J. 2014) the Hon'ble Calcutta High Court while considering the identical preliminary objection regarding maintainability of the Revision Petition under Section 397 of the Cr.P.C. filed against an order passed under Section 397 of Cr.P.C. observed thus:
"4. Mr. Mohanty for the opposite parties raised a preliminary objection regarding maintainability of this revision application relying upon the provisions of Section 397 of the Code of Criminal Procedure. Sub-section (3) of that section provides:
"If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them."
Members of the second party were the applicants before the learned Sessions Judge -7- and this revision has been filed by member of the first party. The embargo imposed by Section 397(3) of the Code is not thus applicable to the present case. The preliminary objection must, therefore, be overruled".
ii) In the case of Inayatullah Rizwi -v- Rahimatullah and others (1981 Cri.L.J.1398) the Hon'ble Bombay High Court while considering the similar issue as to the maintainability of the Revision application, once criminal revision application in support of the proceedings is filed in the Court of session, irrespective of the fact, who had moved the court of Session in revision observed thus:
"18. The words "any person" and "by the same person" in sub-clause (3) of Section 397 of the Code and the words "by or on behalf of any person" and "in relation to such person" appearing in sub-clause (3) of Section 399 must be given their proper meaning and construction. In interpreting a Statute redundancy or superfluity of the words is not -8- normally contemplated or presumed. A plain reading and construction of these two provisions shows that the Legislature intended that an aggrieved person choosing the forum before the Sessions Judge shall be bound by his verdict which shall be final so far he is concerned and he shall be precluded from filing another revision before the High Court and by necessary implication it further means that so far as unsuccessful or aggrieved person by the order the Sessions Judge is concerned, the decision is not conclusive or final for him and a remedy of a revision to the High Court is not barred. If the Legislature really intended to make no distinction between an unsuccessful or successful party before the Sessions Judge in revision and intended that there shall be no further or second revision in any event irrespective of who moved the Sessions Judge and who wins and who loses before the Sessions Judge, the Legislature could have enacted that if an application for revision has been made by any party to the Sessions Judge or to the High Court, no further -9- application shall be entertained by either of them.
19. We are, therefore, of the view that a revision to the High Court would be tenable at the instance of a party who is unsuccessful before the Sessions Judge, or who is aggrieved by his order. In other words, a concurrent finding of the Sessions Judge and of the Courts below becomes final, but when the Sessions Judge reverses the order of the Court below in revision the defeated party is not precluded from moving the High Court. The consensus of judicial opinion as can be seen supports only this view.
20. We, therefore, hold that these two criminal applications filed here by the persons who were non-applicants before the Sessions Judge in the Criminal Revisions and who are aggrieved by the decisions of the Sessions Judge are tenable and competent. There is no need to convert these petitions into applications under Section 482 of the Code. These criminal revisions shall be dealt with
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and disposed of by the learned single Judge according to law."
6. Section 397(3) of Cr.P.C. reads thus:
"397. Calling for records to exercise powers of revision:
1) xxxx
2) xxx
3) If an application under this Section has been made by any person either to High court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them.
The embargo provided u/s.397(3) of Cr.P.C. is not applicable to the present case since the revision petition u/s 397 was filed by the complainant before the learned sessions judge whereas this revision petition is filed by the accused u/s. 397, what is prohibited u/s 397(3) of the Code is filing of second revision petition u/s.397 of the Code by the same party, party who prefers revision
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before the learned Sessions Judge. This view is fortified by the judgments referred to above. Hence, preliminary objection is overruled.
7. As regards jurisdiction of the learned Sessions Judge in entertaining the revision u/s.397 against the order of dismissal of the complaint it is beneficial to refer to the following authorities on the subject:
i) The Co-ordinate Bench of this court in the case of John Sunder Rajan -v- M/s Hajee Timbers and Industries (ILR 2002 Kar 1448) has held that in a proceeding instituted on a complaint under Section 200 Cr.P.C., the learned Magistrate acquitted the accused due to the absence of the complainant. As against the said order of acquittal, an appeal lies under Section 378(4) of Cr.P.C. No revision under Section 397 of Cr.P.C. is maintainable.
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ii) In the case of Krishna Kumar Gupta V/s Mohammed Jaros and another (2003) Crl.L.J. 102, Hon'ble Delhi High Court has observed thus:
" 3. The petitioner is aggrieved and has filed the instant petition. Counsel for the petitioner has argued that the complaint was dismissed in default by the learned Magistrate in exercise of the power given by Section 256 of the Cr.P.C. and upon dismissal of the complaint the accused stood acquitted and not discharged. He urged that only an appeal to the High Court will lie against the order of acquittal and resort to the revision under Section 397 Cr.P.C. before the Additional Sessions Judge was without jurisdiction, it was argued that the order of the learned Additional Sessions Judge entertaining the revision petition against an order which was appellable and restoring the criminal complaint, is patently illegal, erroneous and without jurisdiction.
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4. He had cited Guest Kleen Williams Ltd. v. Muralilal 1984 RLR 32 where a Division Bench of this court held that against an order of dismissal of a complaint under Section 256 of the Cr.P.C. only an appeal lies. He also referred to the judgment of Shri M.M.S. Bedi v.Union Territory of Chandigarh and Anr. 1986 Vol. 79 PLR 687; Vinod Kumar v. State of Punjab 1999(4) Recent Criminal Reports 469; and a judgment of Himachal Pradesh High court in H.P. Agro Industries Corporation Ltd. v. M.P.S. Chawla 1997(2) Crimes 591 in support of his argument that the dismissal of the complaint under Section 256 of the Cr.P.C. resulted In acquittal of the accused and an appeal and not the revision, will be the remedy to challenge it. Counsel, therefore, urged that the Additional Sessions Judge has erroneously exercised jurisdiction which did not vest in him for setting aside the order and this has resulted in miscarriage of justice.
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9. Counsel for respondent has contended that the respondent may be given liberty to challenge the order of the learned Magistrate dated 16.10.1999 in an appropriate appeal or any other proceeding needs consideration.
The respondent filed a revision petition against the order which the learned Additional Sessions Judge, entertained and accepted it erroneously in exercise of his jurisdiction which did not vest in him. In-deed the respondent had resort to a wrong remedy but he was granted the relief by a superior Court. But at the same time, the petitioner had appropriate legal remedy by way of appeal for challenging the order of the learned Magistrate. If he had a right to file appeal he can exercise it in accordance with law for which no permission is needed from the Court."
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iii) The Hon'ble Apex Court in the case of V.K.Bhat
-v- G.Ravi Kishore and another (2016) 13 SCC 243 has categorically held thus:
"7.The learned counsel duly took us to Section 256, 378, 397(3), 399 and 401(4) of the Code of Criminal Procedure and submitted that in accordance with Section 256, if the summons has been issued on complaint, the Court has power to dismiss the said complaint when a complaint does not appear before the court to pursue the complaint or for any other reason, and in such a case, the Magistrate shall acquit the accused. Therefore, in the instant case, the dismissal of the complaint tantamounts to acquittal of the appellant."
8. In the light of these Judgments, it is manifestly clear that if summons has been issued on complaint filed under Section 200 of Cr.P.C. to the accused, the order of dismissal for non prosecution passed by the learned Magistrate would be traceable to
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Section 256 of Cr.P.C. The Order of dismissal for non- prosecution passed by the learned Magistrate would result in acquittal of the accused. In such circumstances, the remedial action for the complainant would be to invoke the appellate jurisdiction and not the revision jurisdiction. Learned Sessions Judge ought to have considered this jurisdictional aspect, more particularly when the accused has raised the said ground. It is well settled law that any order passed by the court of law, not vested with the jurisdiction is null and void ab-initio. Such order passed without jurisdiction is unsustainable and deserves to be set- aside. In the light of the Judgments referred to supra, I am of the considered opinion that the learned Sessions Judge committed an error in entertaining the revision petition and allowing the same, setting aside the order of dismissal for non-prosecution. Having held so, there is no point in addressing the other grounds urged by complainant on the merits of the case. Hence, on the
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ground of jurisdiction alone, the matter requires to be allowed.
Accordingly, the Revision Petition is allowed. The order passed by the learned Sessions Judge in Crl.R.P.No.53/2010 dated 1.12.2010 is set-aside with liberty to the respondent-complainant to question the original order of dismissal for non-prosecution passed by the learned Magistrate by way of appeal under Section 378(4) of the Cr.P.C.
It is needless to mention that pursuing the remedy before a wrong forum shall be considered by the Appellate court while adjudicating the question of limitation in filing the appeal before the appropriate court.
Sd/-
JUDGE ln.