Karnataka High Court
Veeramani Rao vs Smt J S Gayatri Rao on 22 July, 2022
Author: H.B. Prabhakara Sastry
Bench: H.B. Prabhakara Sastry
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF JULY 2022
BEFORE
THE HON'BLE Dr. JUSTICE H.B. PRABHAKARA SASTRY
CRIMINAL REVISION PETITION No.956 OF 2013
BETWEEN:
1. Veeramani Rao,
S/o Late Subba Rao,
Aged 69 years,
2. Smt.Ramamani Rao,
W/o Veeramani Rao,
Aged 52 years,
Both R/o JCM Road,
Hosanagar Town,
Shimoga District. .. Petitioners
( By Sri B.N.Shetty, Advocate )
AND:
Smt.J.S.Gayatri Rao,
W/o late J.S.Dattatri Rao,
Aged 49 years,
R/o Behind Shankar Mutt,
Basavanahalli,
Chikmagalur City. .. Respondent
( By Sri C.Sadashiva, Advocate )
This Criminal Revision Petition is filed under Section 397
read with Section 401 of Cr.P.C. praying to call for the records
from the II Addl.District & Sessions Judge, Chikmagalur in
Criminal Appeal No.222/2013 and to set aside the order on I.A.1
Crl.R.P.No.956/2013
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in Criminal Appeal No.222/2013 dated 4th December 2013 on the
file of the II Addl.District and Sessions Judge, Chikmagalur and
allow application for C.D. and remand the matter for fresh
disposal.
This Criminal Revision Petition is coming on for Hearing
through Physical Hearing/Video Conferencing Hearing, this day
the Court made the following:
ORDER
The present respondent as a complainant had instituted a petition against the present petitioners arraying them as respondents in Criminal Miscellaneous No.410/2012, in the Court of learned II Addl.Civil Judge and J.M.F.C., Chikkamagaluru, (hereinafter for brevity referred to as `trial Court'). The said petition was filed under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter for brevity referred to as `D.V.Act'), inter alia for the relief of returning of domestic utility articles, silver and gold articles, furnishings said to be belonging to the petitioner therein and which were alleged to have been left in the house of the respondents therein. She has also sought for a compensation of `2 lakhs for the Crl.R.P.No.956/2013 3 mental and physical agony said to have been inculcated to her by the respondents therein.
2. After recording that the respondents refused to accept the notice, the trial Court proceeded in the matter and partly allowed the petition vide its order dated 20.07.2012, wherein the Protection Officer was directed to get back all the domestic utilities along with gold and silver articles to the petitioner before it within a month from the said date. A sum of `10,000/- was also ordered to be paid as compensation towards the mental agony said to have been given by the respondents to the petitioner therein.
3. Challenging the said order dated 20.07.2012, the petitioners herein preferred an appeal in Criminal Appeal No.222/2013 in the Court of learned II Addl.District and Sessions Judge, Chikkamagaluru, (hereinafter for brevity referred to as the `Sessions Judge's Court'), however, with a delay of one year. Seeking condonation of this delay of one year, the appellants (petitioners herein) filed an I.A. Crl.R.P.No.956/2013 4 under Section 5 of the Limitation Act. The said I.A. was numbered as I.A.No.I. The Sessions Judge's Court took up the said I.A. for its disposal. The appellant/applicant led his evidence on the said I.A. The Sessions Judge's Court vide its order dated 04.12.2013, rejected the said I.A. Consequently, the appeal filed by the appellants before it also came to be dismissed. Challenging the same, the appellants in the Sessions Judge's Court have filed this revision petition.
4. Heard the arguments of learned counsel from both side. Perused the materials placed before this Court, including the trial Court and Sessions Judge's Court's records.
5. After hearing the learned counsel from both side, the only point that arise for my consideration in this revision petition is:
Whether the order passed by the Sessions Judge's Court on I.A.No.I requires an interference at the hands of this Court?Crl.R.P.No.956/2013
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6. The learned counsel for the petitioners in his brief argument submitted that the petitioners herein were not served with the notice in the trial Court, as such, they were totally unaware of the institution of the Criminal Miscellaneous No.410/2012 against them. It was only when the steps for execution of the said order was taken up by the respondent herein by filing Crl.Misc.No.278/2013, the petitioners herein came to know about the impugned order passed by the trial Court, as such, without wasting time, they obtained a copy of the order and preferred Criminal Appeal No.222/2013. Thus, sufficient cause shown by the applicants was not properly considered by the Sessions Judge's Court, as such, the impugned order passed by the Sessions Judge's Court deserves to be set aside.
7. Per contra, learned counsel for the respondent submits that the impugned order passed by the Sessions Judge's Court is self-explanatory and well reasoned order. It has given the detailed reasons as to how it believed the report submitted by the Child Development Project Officer Crl.R.P.No.956/2013 6 (CDPO) to the effect that a genuine attempt made by the CDPO Office to serve the notice was not utilised by the respondents in the trial Court, on the contrary, apart from refusing to receive the notice, they scolded the server of the notice and sent her back. Thus, the alleged ignorance of the institution of Crl.Misc.No.410/2012 on the part of the petitioners herein, cannot be believed.
8. The present respondent claims herself as widow of one late Sri I.S.Dattatri Rao, who was said to have been died while in service in Survey Department at Chikkamagaluru. According to the complainant, after the death of her husband, as a widow, she went to the house of the present petitioners, among whom, petitioner No.1 was the elder brother of her deceased husband and petitioner No.2 is the wife of the present petitioner No.1. After the stay of the present respondent in the house of the petitioners for some time, she was forcibly made to vacate the said house and go back to Chikkamagaluru. However, the present petitioners refused to give her back several of Crl.R.P.No.956/2013 7 the furnitures which she claims to have brought along with her while going to stay with them and also some gold and silver articles, which according to the respondent herein, were kept in a locked almirah by her in the house of the present petitioners, which almirah is said to have been broke open by them and the valuables from it were taken into their custody.
9. As observed above, showing that the present petitioners, who were the respondents in the trial Court in Crl.Misc.No.410/2012, refused to accept the notice, the trial Court proceeded to hear the petitioner alone and allowed the petition in-part. The reason shown by the present petitioners as appellants in Criminal Appeal No.222/2013 in the Sessions Judge's Court as a cause for the delay in filing the appeal was the alleged non-service of notice by the trial Court upon them. They have stated that, at no point of time, any attempt was made to serve notice upon them. However, except the said self-serving statement, admittedly the present petitioners, as appellants in the Sessions Crl.R.P.No.956/2013 8 Judge's Court have not produced any corroborative documents or corroborative evidence to support their contention. On the other hand, PW-1 in the Sessions Judge's Court himself has admitted that there was no enmity between him and one Ms.Jyothi, who was said to be the one who went to the house of the respondents in the trial Court (petitioners herein) on behalf of office of CDPO for the service of notice. It is based upon the detailed report of said CDPO that the respondents in the trial Court, apart from refusing to receive the notice, also scolded and sent back said Ms.Jyothi, proceeded to accept the said reasoning given by the trial Court as the reason for the trial Court proceeding further and held that the cause shown by the appellants was not a sufficient cause.
10. Though prima facie the said reasoning given by the learned Sessions Judge for rejecting I.A.No.I filed by the appellants therein appears to be a convincing reasoning, but, while deciding an application under Section 5 of the Limitation Act, it ought to have considered the nature of the Crl.R.P.No.956/2013 9 appeal before it, and the circumstances of the case. As on the date of filing of the Criminal Appeal itself, the appellant No.1 (petitioner No.1 herein) was shown to be a Senior Citizen with 69 years and petitioner No.2 was of 52 years, as such, they were old in their age.
Secondly and more importantly, except CDPO's report that the receipt of notice was refused by the respondents in the trial Court, no other materials were there before the Sessions Judge's Court to accept the said report without any enquiry into it. When it was the specific contention of the appellants that the alleged report of CDPO was a tailored report only to help the petitioner in the trial Court, the circumstances and nature of the appeal ought to have been assessed by the Sessions Judge's Court very carefully and should have attempted to find out any other corroborative materials to find out the truthfulness in the same. Nothing had prevented either of the parties to examine the said Ms.Jyothi, upon whose alleged attempt, Crl.R.P.No.956/2013 10 the CDPO report was said to have been came into existence, however, no such attempt was made.
11. In the said circumstances, I am of the view that since the relief sought for was for the returning of the alleged valuable articles, including the gold and silver items, from the present petitioners to the present respondent, an opportunity should have been given to the present petitioners, who were the appellants in the Sessions Judge's Court, to put forth their case. However, the inconvenience caused to the respondent therein (petitioner in the trial Court) and for the delay that has taken in the matter, a recognisable cost could have been imposed upon the appellants by the Sessions Judge's Court and that could have served best interest of justice. Thus, I am of the view that the present revision petition deserves to be allowed, however, on cost and both parties be given an opportunity to put their case.
12. Accordingly, I proceed to pass the following: Crl.R.P.No.956/2013 11
ORDER The Criminal Revision Petition is allowed by imposing a cost of `15,000/- payable by the petitioners herein to the present respondent by depositing the said amount in the Sessions Judge's Court on or before 16.08.2022 either in the form of depositing the said amount in the Sessions Judge's Court or paying the said amount to the respondent herein in the form of a Bank Demand Draft drawn in her favour, under due intimation to the present respondent herein.
Subject to deposit of the said cost, the order dated 04.12.2013, passed by the learned II Addl.District & Sessions Judge, Chikkamagaluru, on I.A.No.I in Criminal Appeal No.222/2013, is set aside. Consequently, I.A.No.I filed by the appellants therein (petitioners herein) under Section 5 of the Limitation act, stands allowed. The delay of one year caused in filing the Criminal Appeal No.222/2013 stands condoned.Crl.R.P.No.956/2013
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Considering the fact that from the year of Crl.Misc.No.410/2012, it is already ten years that has been passed, the Sessions Judge's Court disposing of the Criminal Appeal No.222/2013 at the earliest, but, not later than ten weeks from today, would be highly appreciated.
Both parties herein shall appear before the Sessions Judge's Court on 16.08.2022 at 11.00 a.m. without anticipating any fresh summons or notice from the said Court. Accordingly, the matter stands remanded to the learned Sessions Judge's Court.
Registry to transmit a copy of this order along with the trial Court and Sessions Judge's Court record to the Sessions Judge's Court, which in turn, shall transmit the record to the concerned trial Court after disposal of the appeal and without any delay.
Sd/-
JUDGE bk/