Karnataka High Court
M/S S N Finance Limited vs Smt K R Sathyavathy on 27 February, 2015
Author: R.B Budihal
Bench: R.B Budihal.
1
IN THE HIGH COURT OF KARNATAKA AT
BENGALURU
DATED THIS THE 27TH DAY OF FEBRUARY 2015
BEFORE
THE HON'BLE MR. JUSTICE BUDIHAL. R.B
CRIMINAL APPEAL NO.471 OF 2012
BETWEEN:
M/s S N Finance Limited
No. 180, 9th Cross
Off: C.M.H Road
Indiranagar 1st Stage
Bangalore-560 038.
Now:
M/s S N Finance Limited (In Liqn.)
Rep. by: The Official Liquidator
Attached to High Court of Karnataka
Corporate Bhavan
No.26-27, 12th Floor
Rahaja Towers
M G Road
Bangalore-560 001. .. APPELLANT
(By Sri K S Mahadevan, Adv.)
AND:
Smt K R Sathyavathy
W/o Sri A S Pattabiraman
Aged about 56 years
No.607-A, I Main Road
2
2nd Stage, Rajajinagar
Bangalore-560 010. ..RESPONDENT
(By Sri C V Nagesh, Sr. Counsel
a/w Sri K Raghavendra, Adv. for
M/S C V Nagesh & Associates)
This Criminal Appeal is filed under Section 378(4) of
CR.P.C praying that this court may be pleased to set aside the
impugned order of acquittal dated 05.10.2007 passed in
C.C.No.5118/2003 - acquitting the respondent/appellant for the
offence punishable under Section 138 of Negotiable Instruments
Act.
This Criminal Appeal coming on for Orders this day, the
Court delivered the following:
JUDGMENT
The official liquidator has filed I.A.No.1/2012 under Section 5 of the Limitation Act representing the complainant seeking condonation of delay of 1574 days in preferring the criminal appeal. The application is supported by the affidavit of official liquidator attached to this Court wherein it is stated that in terms of Section 449 pursuant to the order of winding up passed by this Court he has gone through the records pertaining to the appellant-company and that one Sri.A.S.Pattabhiraman, Ex- Managing Director of the company in liquidation in collusion with Smt.K.R.Sathyavathi his wife misappropriated /mismanaged the 3 funds of the company in liquidation. Thereafter, company filed the criminal complaint bearing C.C.No.818/2002 before the 4th ACMM Court, Bangalore in which Smt.K.R.Sathyavathi is accused. It is also mentioned that recovery suit in O.S.No.7306/2002 is also filed for recovery of Rs.5,94,21,914.38 against Sri.A.S.Pattabhiraman in which his wife is the 2nd respondent. It is stated that the said criminal case has been dismissed by the ACMM Court acquitting the accused vide order dated 5.10.2007 in C.C.No.5118/2003. The complainant challenging the impugned order filed company application bearing No.1462/2007 before this Court well within the limitation period instead of preferring the same before the criminal Court. The said act of the complainant is not intentional, but an inadvertent mistake. Hence, the applicant sought to condone the delay in preferring the present appeal before this Court.
2. The respondent opposed the application by filing objection statement wherein it is contended that no sooner notice of the application filed by the official liquidator in the company 4 application No.142/2002 came to be served on respondent, the respondent appeared in the case and filed her counter contending that appellant-company cannot maintain an application before the company Court in a company petition questioning the legality and correctness of the judgment of acquittal passed by the criminal Court in relation to an offence which made penal under Section 138 of the N.I.Act. Instead, the official liquidator who is representing the company in the event of company being in any way aggrieved by the judgment of acquittal passed by the trial Magistrate, has got to challenge the same in an appeal invoking the jurisdiction of appellate Court under Section 378 of Cr.P.C. Hence, the respondent opposed the application and sought for dismissal of the same.
3. Heard the learned counsel appearing for the applicant- complainant and learned Senior Counsel appearing for Respondent on I.A.No.1/2012.
4. Learned counsel for the applicant has submitted that after dismissal of criminal case by the Magistrate Court the official 5 liquidator filed the application before the company Court. It is the bonafide mistake on the part of the official liquidator in pursuing remedy before the wrong forum. The company Court disposed of the application with a liberty to the complainant to approach the appropriate forum. When the application was pursued before the wrong forum, it is with bonafide intention and it is not intentional or deliberate. In support of his contention, learned counsel for the applicant-complainant has relied upon the decision reported in AIR 2011 SC 503 in the case of Coal India Ltd., and another Vs. Ujjal Transport Agency and others. The relevant paragraph No.5 of the said judgment reads as under:
"5. The question that therefore would arise for consideration is whether the appellants were bonafide and diligently pursuing the remedy before a wrong forum. The first respondent contended that different causes were shown and different explanations were given by the appellants in the application for condonation of delay filed by the appellant before the District Court on 3.11.2009, the subsequent application under Section 34(3) of the Act read with Section 14 of Limitation act filed on 8.1.2010 and the application dated 29.10.2009 for withdrawal of the appeal filed before the High Court. But a careful examination of these applications shows that there is, in fact, no inconsistency. The first appellant is a Corporation and it has to act through its Board of Directors and 6 not at the level of individual officers. It is true that the appellants have stated that they became aware that the appeal was not maintainable before the High Court when they came to know about the execution proceedings. But thereafter, there was some uncertainty as to whether the application under Section 34 of the Act had to be filed in the District Court only after the withdrawal of 'appeal' under Section 34 of the Act before the High Court, or whether the withdrawal and filing of fresh application under Section 34 of the Act should be simultaneous, or whether to avoid delay, the application under Section 34 of the Act should be filed in the District Court immediately even before the application for withdrawal could be moved before the High Court. In fact the appellants demonstrated their diligence and bona fides by filing the application under Section 34 of the act on 19.10.2009 itself immediately on reopening of court, without waiting for a formal order of withdrawal of the 'appeal' under Section 34 before the wrong forum. Therefore it cannot be said that filing of the application under Section 34 of the Act on 19.10.2009 was belated. Further if the period spent before wrong forum is excluded, the application is filed within three months and there is no question of explaining any delay. The filing of an application for condonation under a wrong provision of law will not vitiate the application. In fact though the application for condonation of delay was initially filed under section 5 of Limitation Act, which was subsequently replaced by an application under Section 34(3) of the Act, and again by an application under Section 34(3) of the Act read with Section 14 of the Limitation Act."
Hence, it is submitted to allow the application. 7
5. Per-contra, learned senior counsel appearing for the respondent-accused during the course of his arguments submitted that the contention of the applicant that application pursued before the wrong forum is a bonafide mistake cannot be accepted in this case. When such application was filed before the Company Court, immediately objections were filed on 7.2.2008 itself wherein it is clearly mentioned in the objection statement that against the dismissal of the complaint for the alleged offence under Section 138 of N.I.Act, complainant cannot maintain an application before the company Court and it is also specifically stated that he has to approach the criminal Court under the provisions of Cr.P.C. by filing an appeal. In spite of such objection filed as early as on 7.2.2008 it was pursued till 18.4.2012 and ultimately application was withdrawn by the complainant. Hence, learned senior counsel submitted that there is a negligent attitude on the part of the complainant and his act cannot be termed as a bonafide mistake. In support of his contention, learned senior counsel has relied upon the decision reported in AIR 2011 SC 489 in the case of Ramji Pandey and others Vs. 8 Swaran Kali. The relevant paragraph Nos.13 and 14 of the said decision read as under:
"13. The High Court considered the entire facts and circumstances of the case and then held that the aforesaid objection of the respondent is well-founded, particularly in view of the fact that at the very initial stage itself the respondent had taken a clear objection that the District Court did not have jurisdiction to try and decide the appeal. Not only did the appellants ignore the said objection, but the Court while allowing the application filed by the appellants, also ignored the said fact which was specifically pleaded in the objection filed by the respondent.
14. The aforesaid conclusions which have been arrived at by the High Court are relevant facts. Considering the entire records, we find that the appellants are not only negligent but have been acting and pursuing the entire matter without due diligence as would be apparent from the fact that they initially failed to pursue the suit in right earnest, having failed to appear and contest the suit, due to which an ex-parte decree had to be passed by the court. Even thereafter, they failed to file the appeal in the proper forum, which was brought to their notice right at the initial stage by the respondent's filing of an objection. Despite the said fact, they did not take any step to withdraw the same and continued with the proceedings which was void ab initio and without jurisdiction and also obtained an order in their favour. Even before the High Court, where the impugned order was passed the appellants did not appear on the date of arguments or even on the previous dates. Absence of due diligence in pursuing the matter is writ large on the face of the 9 records. Suit of 1983 was decreed ex-parte in the year 1988 and thereafter the proceeding for setting aside the ex-parte decree is being dragged on one way or the other by filing application/appeal and is dragging the matter till date."
He has further submitted that there is a delay of four years six months in preferring the application. Hence, there is no merit in the application and the same is to be rejected.
6. I have perused the averments made in the application, the grounds urged in the affidavit supporting the application, so also, the objection statement and the entire records of the case.
7. Looking to the materials placed on record, it is no doubt true that the complainant has filed such application before the company Court challenging the judgment and order of the Magistrate Court. But the question is whether pursuing such remedy before the company Court is with bonafide intention or it is the negligent act on the part of the applicant-complainant. If the application was pursued before the company Court till it was withdrawn and it was not brought to the notice of the company 10 Court by the respondent by filing objection statement that such application is not maintainable and that criminal appeal is to be filed under the provisions of the Cr.P.C., then it could have been stated that there was a bonafide mistake on the part of the applicant-complainant in pursuing such remedy before the company Court. But in the case on hand, when such application was filed before the company Court and immediately thereafter i.e, on 7.2.2008, respondent-accused appeared before the company Court and filed objection statement taking a clear contention that such application is not maintainable and the complainant has to prefer the appeal under the provisions of Cr.P.C. In spite of bringing the said fact to the notice to the company Court as well as to the complainant-applicant, the applicant has not taken steps either to withdraw the application or to get it disposed of by the company Court on the ground that he will take steps to prefer an appeal before the appropriate Court. But the applicant has continued the proceedings and thereafter, after four years six months, i.e., on 18.4.2012 he withdrew the said application. Further, the facts and circumstances in the reported 11 decision relied upon by the learned senior counsel referred to above and the facts and circumstances in the case on hand are one and the same and under similar circumstances their lordship's have held that there is a negligent act on the part of the applicant in pursuing the remedy.
8. Looking to the factual and legal aspect involved in the case, I am of the opinion that applicant has not at all established with cogent and sufficient material that application was pursued before the wrong forum with bonafide intention and that there was no negligent act on his part. Since sufficient cause has not been shown by the applicant-complainant, application deserves to be rejected. Accordingly, I.A.No.1/2012 filed for condonation of delay of 1574 days and also I.A.No.2/2012 filed seeking special leave, both are rejected. Consequently, Criminal Appeal is also rejected.
Sd/-
JUDGE bkp