Karnataka High Court
Mohammad Khaja S/O Mohiddeen Sab vs B.Nagaraj S/O B. Gouri Shankar on 21 October, 2020
Equivalent citations: AIRONLINE 2020 KAR 2327, 2021 (1) AKR 815
Author: Pradeep Singh Yerur
Bench: Pradeep Singh Yerur
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
ON THE 21 S T DAY OF OCT OBER 2020
BEFORE
THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR
CRL.RP.NO.100159 OF 2019
BETWEEN
MOHAMMAD KHAJA, S/O MOHIDDEEN SAB
AGE:MAJOR, OCC:NIL,
R/O BEHIND MUDUKAPPA SAW MILL,
HUVINA HADAGALI TOWN,
DISTRICT: BALLARI-583219.
...PETITIONER
(BY SRI.SRINIVAS NAIK, ADVOCATE)
AND
B. NAGARAJ, S/O B.GOURI SHANKAR,
AGE:46 YEARS, R/O HUVINAHADAGALI TOWN
BALLARI DISTRICT-583219.
RESPONDENT
(BY SRI.T. HANUMAREDDY, ADVOCATE)
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 R/W SECTION 401 OF CR.P.C. SEEKING TO
ALLOW THIS CRIMINAL REVISION PETITION AND SET ASIDE
THE JUDGMENT AND ORDER DATED 01.04.2019 INSOFAR
DEPOSIT OF 50% OF FINE AMOUNT I.E. RS.2,00,000/-
BEFORE THE TRIAL COURT,PASSED IN CRL.A.NO.5038/2015
ON THE FILE OF III ADDL. DIST. AND SESSIONS JUDGE,
BALLARI, SITTING AT HOSAPETE AND SET ASIDE THE
JUDGEMENT AND ORDER OF CONVICTION AND SENTENCE
DATED 24.08.2015 PASSED IN CC NO.684/2011 ON THE FILE
OF THE CIVIL JUDGE AND JMFC COURT, HADAGALI FOR THE
OFFENCES PUNISHABLE UNDER SECTION 138 OF NI ACT.
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THIS PETITION COMING ON FOR ADMISSION
THIS DAY, T HE COURT MADE THE FOLLOWING:
ORDER
This revision petition is preferred by accused aggrieved by the order passed in Crl.A.No.5038/2015 by the III Addl. District and Sessions Judge, Ballari sitting at Hospet dated 01.04.2019 wherein the appeal filed by the petitioner herein against the judgment of conviction and order of sentence passed by Civil Judge and JMFC Court, Hadagali dated 24.08.2015 in C.C. No.684/2011 was allowed in part, remitting back the matter to trial Court to record additional evidence and to comply the provisions of Section 329 of Cr.PC. subject to depositing 50% of the fine amount i.e. Rs.2,00,000/- by accused before trial Court.
2. Though this petition is listed for admission, with consent of both the parties, it is taken up for final disposal.
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3. The brief facts leading the filing of this revision petition is as under:
Respondent had filed a private complaint for the offences punishable under Section 138 of Negotiable Instruments Act (for short 'NI Act') against petitioner herein as the respondent has parted a loan of Rs.2,50,000/- during the first week of January-2011 to meet out his urgent domestic expenses. Petitioner was unable to pay the loan amount within two months and on demand made by the respondent, petitioner got issued a cheque bearing No.378733 dated 28.03.2011 in favour of complainant. The said cheque was returned unpaid for the reason "Funds Insufficient", due to which respondent got issued a legal notice on 29.04.2011.
Despite receipt of the legal notice, petitioner herein failed to pay the cheque amount giving rise to filing of the private complaint by respondent.
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4. In order to prove the guilt of the petitioner, respondent got examined himself as PW.1 and two other witnesses as PWs.2 and 3 and got marked Ex.P1 to Ex.P7. Thereafter, statement of the petitioner was recorded under Section 313 of Cr.PC in which the petitioner denied the incriminating circumstances against him and pleaded to be tried and accordingly he was tried. After considering the entire material evidence and the statements of parties, the trial Court convicted the petitioner for the offence punishable under Section 138 of NI Act and sentenced the petitioner to pay a fine of Rs.4,00,000/-, in default to undergo simple imprisonment for one year and out of the fine amount to pay a sum of Rs.3,90,000/- to respondent as compensation.
5. Petitioner being aggrieved by the judgment of trial Court preferred an appeal before the Appellate Court in Crl.A.5038/2015. On service of notice in the said appeal, respondent -5- appeared and contested the matter. After hearing both the parties, Appellate Court framed the following points for consideration.
6. After hearing the learned counsel for the parties and on appreciating the material on record, Appellate Court came to the conclusion that petitioner was successful in dragging on the case from 2011 to 2014 and he did not subject himself to cross examination as he refused the same. The Appellate Court on perusal of order sheet of the trial Court came to a finding that trial Court has complied with the provisions of Section 329 of Cr.P.C. examined the petitioner as well as the documents produced by him and arrived at a conclusion that there was no material even prima facie to hold that accused is suffering from mental illness or unable to take defence. It is further noted that the learned trial Judge has specifically observed through out trial the behaviour of accused is very normal and that the answers given by petitioner in 313 -6- statement was as a prudent man and no sign of mental illness is forthcoming etc. Further, Appellate Court came to a finding that however "absolutely appellant makes no case on merits, trial Court has rightly appreciated the material available on record and arrived at a just and fair conclusion." Thereafter, Appellate Court came to a conclusion that leading medical evidence is very much necessary to arrive at just and fair conclusion regarding mental capacity of the accused. On these findings, the Appellate Court partly allowed the Criminal Appeal and remitted back the matter to trial Court to record additional evidence and to comply the provisions of Section 329 of Cr.P.C. subject to depositing 50% of the fine amount i.e. Rs.2,00,000/- by accused before the trial Court. Further Appellate Court made an order for depositing of Rs.2,00,000/- in any nationalized bank till conclusion of trial. The petitioner is aggrieved by this order of direction to deposit -7- Rs.2,00,000/- as 50% of the fine amount and hence, he has filed this revision petition.
7. The short point for consideration before this Court in this revision petition is the order of Appellate Court in remitting the matter back to the trial Court for recording Additional Evidence and to comply the provisions of Section 329 of Cr.P.C. The petitioner is aggrieved by the second portion of the order of the trial Court, wherein 50% of the fine amount i.e. Rs.2,00,000/- has been ordered to be deposited before the trial Court.
8. Heard the learned counsel for petitioner. It is the contention of the learned counsel for petitioner that petitioner is of unsound mind and is suffering from personality disorder and therefore, the complaint filed against him before the trial Court is not maintainable. He further contends that though the Appellate Court has come to a conclusion that the matter requires -8- reconsideration in view of trial Court not considering the provisions of Section 329 of the Cr.P.C, the question of imposing condition to deposit 50% of the fine amount as a pre- condition is illegal and perverse. Therefore, though the Appellate Court is right in remitting the matter back to trial Court it has committed an illegality in putting a pre-condition of depositing Rs.2,00,000/- being 50% of the fine amount. Therefore, under the facts and circumstances of the case, he seeks for allowing this revision petition and set aside the order of direction to deposit 50% of the fine amount i.e Rs.2,00,000/-.
9. Per contra, the learned counsel for the respondent vehemently contends that order passed by the Appellate Court is not correct in remitting back the mater to trial Court, but in view of the fact that the respondent has not challenged the orders of the Appellate Court, he confines his arguments with regard to the -9- correctness of the order passed by the Appellate Court on deposit of Rs.2,00,000/- as a pre- condition. It is contended by the learned counsel for respondent that petitioner has successfully dragged on the matter from 2011 to 2014 and till date, thereby he has abused the process of law.
10. He further contends that the trial Court has appreciated all the contentions of petitioner with regard to the defence taken about the mental illness and mental disorder and has satisfactorily answered the same.
11. He further contends that even Appellate Court has relied on the order sheet of trial Court wherein sufficient opportunities were provided to petitioner to produce all material documents in support of his case to prove the fact of mental illness and mental disorder. He further contends that Appellate Court has rightly come to the conclusion that petitioner has not made out any -10- case on merits of the matter and that trial Court has arrived at just and fair conclusion. It is his contention that Appellate Court has provided one more opportunity to petitioner to prove the alleged fact of his mental incapacity and mental illness by directing him to deposit a sum of Rs.2,00,000/- being the 50% of fine amount which does not require any interference by this Court. On such submission he seeks for dismissal of this Revision Petition.
12. Having heard the leaned counsel for petitioner and respondent, the point for consideration before this Court is whether the order passed by Appellate Court deserves to be set aside and whether there is any illegality or perversity committed by the Courts below.
13. It is not in dispute that the petitioner made an application before the trial Court under Section 328 of Cr.P.C. for summoning the doctors and guardian for recording evidence on -11- behalf of petitioner, which application came to be allowed and later on as the petitioner did not take any steps to lead evidence, trial Court convicted the petitioner. On consideration of entire material placed before the Court though the Appellate court has held that petitioner has not made out any case on merits of the matter and having came to a conclusion that trial Court has appreciated the material available on record and arrived at a just and fair conclusion, despite this, in order to provide one more opportunity to petitioner to establish the fact of his mental illness and to produce all such medical evidence remitted the matter back to trial Court for consideration of the provisions of Section 329 of Cr.P.C. and to lead additional evidence.
14. The Appellate Court has also observed that petitioner has dragged on the matter from 2011 for 4 years before the trial Court and another 4 years before the Appellate Court. It is also necessary to see that even before this Court, -12- the petitioner has spent more than one year. Therefore, it is apparent on the face of record that petitioner has successfully dragged on the matter from 2011 till date.
15. With regard to the precondition imposed by appellate Court for deposit of Rs.2,00,000/- and remitting the matter to trial Court for additional evidence by petitioner, I am of the opinion that the said order does not call for any interference.
16. Petitioner has not made out any valid ground to establish before this Court the illegality or perversity committed by appellate Court in passing such order. It is further to be noted that the deposit of 50% of the fine amount is ordered by the appellate Court for the reason that the petitioner has not been diligent in prosecuting the matter before the appellate Court and has deliberately dragged the matter without leading his evidence nor producing material to show his mental illness and mental -13- incapacity. Further, it is necessary to note that appellate Court has ordered the amount so deposited to be kept in any Nationalized Bank till conclusion of trial. Therefore, the petitioner would be at liberty to seek for withdrawal of amount in case he succeeds before trial Court. Accordingly, revision petition is dismissed. It is needless to mention that this Court has not expressed any opinion with regard to the merits of the matter.
17. Considering the fact that the matter is of the year 2011, trial Court directed to dispose of the matter within an outer limit of four months from the date of receipt of a copy of this order.
Sd/-
JUDGE HMB/CKK