Karnataka High Court
Marutirao Hosmanim S/O Saibanna ... vs Suresh S/O Mailarappa Kattimani on 7 November, 2015
Author: A.N.Venugopala Gowda
Bench: A.N.Venugopala Gowda
1
R
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 07TH DAY OF NOVEMBER, 2015
BEFORE
THE HON'BLE MR. JUSTICE A.N.VENUGOPALA GOWDA
CRIMINAL PETITION NO.15517/2013
BETWEEN:
MARUTIRAO HOSMANI
S/O SAIBANNA HOSMANI
AGE: 54 YEARS,
OCC: MANAGER REPRESENTING
STATE BANK OF HYDERABAD
YADGIR BRANCH, YADGIR - 585 201.
... PETITIONER
(BY SRI A. VIJAYKUMAR, ADVOCATE)
AND:
SURESH
S/O MAILARAPPA KATTIMANI
AGE: 45 YEARS, OCC: TEACHER
KOLIWADA LOCALITY, YADGIR
DIST.YADGIR - 585 201.
... RESPONDENT
(BY SRI V.R. STHAWARMATH, AND SRI B. C. JAKA, ADVS.)
2
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C. PRAYING TO CALL FOR RECORDS RELATING TO
ORDERS PASSED IN C.C. NO.676/2008 DATED: 15.12.2012 ON
THE FILE OF THE CIVIL JUDGE & J.M.F.C YADGIR AND DISTRICT
AND SESSIONS JUDGE AT YADGIR IN CRIMINAL REVISION
PETITION NO.5/2013 DATED 27.4.2013 AND AFTER PERSUAL
SET ASIDE THE ORDERS IN THE INTEREST OF JUSTICE AND
EQUITY.
THIS PETITION COMING ON FOR HEARING THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
This petition is against an order dated 27.04.2013, passed in Crl.R.P.No.5/2013 by the Sessions Judge, Yadgiri. By the said order, an order dated 15.12.2012 passed by the JMFC at Yadgiri, in C.C.No.676/2008, rejecting an application dated 01.08.2012 filed by the complainant, under Section 142(b) of the Negotiable Instruments Act, 1881 (for short 'the Act') was upheld.
2. Brief facts of the case, according to the petitioner is, that the respondent obtained personal loan of Rs.50,000/-, under Account No.MTL 52141329346, on 30.08.2004, agreeing to repay with interest at 15.5%, in 3 36 monthly installment of Rs.17,000/-, from him. Towards discharge of the loan and the interest, a cheque bearing No.294011 payable at Syndicate Bank at Yadgiri, on 30.04.2008, was issued. The said cheque, on presentation, was returned by the Bank, with an endorsement dated 22.09.2008 "dishonoured for insufficient funds". A demand notice to pay the cheque amount was sent on 24.09.2008 and payment was not made. Hence, a private complaint was filed on 21.11.2008, before the Additional JMFC at Yadgiri, under Section 200 Cr.P.C. Sworn statement of the complainant was recorded, cognizance of the offence, under Section 138 of the Act was taken and process was issued to the accused. After recording the plea of the accused, who denied the charge, trial took place. At the stage of recording statement of the accused, under Section 313 Cr.P.C., an application under Section 142(b) of the Act, to condone the delay of 10 days in filing the complaint was filed. Statement of objections was filed to the application 4 by the accused. The JMFC, by placing reliance on the decision in the case of T.S. Muralidhar vs. H. Narayan Singh, (2010) 5 Kar.L.J. 149, rejected the application, by being of the view, 'that he is not having any jurisdiction to condone the delay after taking of the cognizance of the offences, registration of criminal case and issue of process'.
3. Criminal revision petition filed under Section 397 Cr.P.C., was dismissed by the Sessions Judge, by placing reliance on the decision in the case of T.S. Muralidhar, by being of the opinion that condonation of delay ought to be sought before the time of taking cognizance of the offence. The Sessions Judge held, that once cognizance is taken and trial takes place, the court cannot revert back to the stage of taking cognizance for the purpose of condoning the delay.
4. Sri A. Vijaykumar, learned advocate, placed reliance on the decision of the Apex Court in Pawan Kumar 5 Ralli vs. Maninder Singh Narula, (2014) 15 SCC 245 and submitted that both Magistrate and the Sessions Judge have committed material error and illegality in not keeping in view the legislative intent in inserting the proviso to clause (b) of Section 142 of the Act. He submitted that in view of the decision in Pawan Kumar Ralli's case, the decision in Sri T.S. Muralidhar's case, is no more good law. Learned counsel contended that both impugned orders being contrary to the decision in Pawan Kumar Ralli's case, are liable to be quashed and the matter remanded to the JMFC, to decide the application filed under Section 142(b) of the Act.
5. Sri B.C. Jaka, learned advocate, on the other hand, by placing reliance on the decision of Sri T.S. Muralidhar's case, opposed the petition. He submitted that the Magistrate was right in dismissing the application filed at a highly belated stage of the case and that the learned Sessions Judge was justified in rejecting the revision 6 petition. He submitted that the application having been filed at the stage of recording statement under Section 313 Cr.P.C. i.e., long after cognizance of the offence was illegally taken and process was illegally issued, which has been noticed by both the courts below, the impugned orders do not call for interference, in exercise of the power under Section 482 Cr.P.C.
6. In the case of T.S. Muralidhar (supra), an application filed under proviso to clause (b) of Section 142 of the Act, seeking condonation of delay, at the stage of hearing arguments on merits of the case was allowed and the delay was condoned. Immediately, the judgment was pronounced holding the accused guilty and was sentenced to pay fine. Judgment of conviction and order of sentence was assailed by the accused. The Appellate Judge set aside the judgment of conviction, on the ground that the complaint being barred by time, the Magistrate had no jurisdiction to take cognizance of the offence alleged in the 7 complaint and since no application was filed seeking condonation of delay, as per proviso to clause (b) of Section 142 of the Act i.e., at the time of filing of the complaint, the trial is vitiated and the judgment of conviction recorded is perverse and illegal.
7. An appeal having been filed by the complainant, under Section 378(4) Cr.P.C., upon grant of special leave, this Court dismissed the appeal on the ground that the Magistrate had no jurisdiction to condone the delay in lodging the complaint, after the trial was over and when the case was posted for hearing of arguments on merit.
8. In Pawan Kumar Ralli's case (supra), the appellant filed a complaint under Section 138 of the Act and the Magistrate took cognizance and issued summons to the respondent, who pleaded not guilty and claimed to be tried. A petition was filed by the respondent, under Section 482 Cr.P.C., for quashing of the proceedings 8 pending before the Magistrate. The High Court expressed the view that the complaint was not filed within a period of one month after expiry of 15 days of receipt of notice and hence, it was barred by limitation under Section 142(b) of the Act and as a consequence quashed the criminal proceedings. Assailing the said order, the complainant filed the SLP. The issues raised for consideration and disposal, read as follows:
"14. xxxxxx
(a) xxxx
(b) If there was any delay in filing the complaint in the present case, whether such delay could have been condoned by the High Court in accordance with the provisions of the Act?
(c) Whether the High Court was right in quashing the criminal proceedings on the ground of limitation or instead of quashing the criminal proceedings it ought to have remitted the matter back to the Trial Court for deciding the issue of limitation?
9. While allowing the petition and setting aside the impugned order and permitting the complainant to file 9 application for condonation of delay before the Trial Court, Apex Court has held as follows:
"20. However, when the issue of limitation has come up for the first time before the High Court, it ought to have dealt with the same on merits as per proviso to Section 142(b) of the Act. The said proviso appended to Clause (b) of Section 142 of the Act was inserted by the Negotiable Instruments (Amendment and Miscellaneous Provisions) Act, 2002 and the legislative intent was, no doubt, in order to overcome the technicality of limitation period. The Statement of Objects and Reasons appended to the Amendment Bill, 2002 suggests that the introduction of this proviso was to provide discretion to the Court to take cognizance of offence even after expiry of the period of limitation [See MSR Leathers Vs. S. Palaniappan (2013) 1 SCC 177]. Only with a view to obviate the difficulties on the part of the Complainant, Parliament inserted the proviso to clause (b) of Section 142 of the Act in the year 2002. It confers a jurisdiction upon the Court to condone the delay [See Subodh S. Salaskar Vs. Jayprakash M. Shah (2008) 13 SCC 689].
21. It is no doubt true that at the time of filing the complaint, the Magistrate has to take cognizance of the complaint when it is within limitation and in case of delay in filing the complaint, the complaint has to come up with the application seeking condonation of delay. But, the peculiar fact of the present case is that in the complaint, the complainant had only averred that he has sent the legal notice dated 24th May, 2012 but not mentioned about the handwritten note dated 27th April, 2012. Basing on the said averment, the learned Trial Judge was satisfied that the complaint is within the prescribed period of limitation. Hence, in this case, raising the plea of limitation and Court exercising the discretion to condone the delay did not arise at all.
22. In the peculiar facts and circumstances of the case, while keeping in mind the legislative intent and the specific plea of the appellant raised in the grounds for the Special Leave Petition that he should have been allowed to move an application for condonation of delay before the Trial Court as the respondent has not suffered any prejudice by reason of 25 days delay, we strongly feel that the appellant should not have been deprived of the remedy provided by the Legislature. In fact, the remedy so provided was to enable a genuine litigant to pursue his case against a defaulter by overcoming the technical difficulty of limitation. Hence, the High Court has committed an error by not considering the issue of limitation on merits.
23. In view of the settled principles of law in Rakesh Kumar Jain, MSR Leathers, Subodh S. Salaskar (supra) and in the peculiar facts 10 and circumstances of the case, we are of the considered opinion that the High Court was not right in quashing the complaint merely on the ground that complaint is barred by limitation, that too a plea which was taken for the first time before the High Court. On the other hand, the High Court ought to have remanded the matter to the Trial Court for deciding the issue of limitation.
24. At the same time, we want to make it very clear that by this observation we are not laying down a legal proposition that without even filing an application seeking condonation of delay at an initial stage, complainant can be given opportunity at any stage of the proceeding. As already discussed by us in the foregoing paragraphs, we have come to the irresistible conclusion, to afford an opportunity for the complainant to move an application seeking condonation of delay, under the peculiar facts and circumstances of the case."
(emphasis supplied)
10. In view of the above, only question for consideration is, whether the decision in Sri T.S. Muralidhar's case (supra), covers the case, when a contrary view has been taken by the Apex Court?
11. In T.S. Muralidhar's case, it was held by a learned Single Judge of this Court as follows:
"15. The learned Magistrate had no jurisdiction to condone the delay in lodging the complaint after the trial was over and when the case was posted for arguments on merits. The learned Magistrate was under
an obligation to consider before taking cognizance as to whether the complaint was within the time and if not, as to whether the complainant has made out sufficient cause for condoning the delay. Since the learned Magistrate has not condoned the delay, he had no jurisdiction to take cognizance of the offence. Upon taking of cognizance criminal 11 prosecution get commenced. Since the taking of cognizance by the learned Magistrate in this case was without any jurisdiction, the entire trial held against the accused is vitiated and therefore, the learned Sessions Judge has rightly held that the learned Magistrate was not justified in convicting the accused and therefore the judgment of the learned Sessions Judge acquitting the accused is in accordance with law. No illegality or irregularity is pointed out in the said judgment. As the order condoning the delay was passed on 10.04.2006 on an Interlocutory Application, in view of the bar created under sub-Section (2) of Section 397 Cr.P.C., the respondent could not have questioned the correctness of the said order in a revision. Therefore, the respondent - accused was well within his right in raising the validity of the said order dated 10.04.2006, as a ground of appeal filed before the learned Sessions Judge. The learned Magistrate proceeded to pass the judgment on merits on 17.05.2006 within about five weeks from the date of condoning the delay. Therefore, there was no opportunity for the respondent accused even to question the said order. Under these circumstances, the learned Sessions Judge is justified, in interfering with the judgment of the learned Magistrate. The judgment of the learned Magistrate is perverse, illegal and contrary to the well settled principles of law.
Therefore, the learned Sessions Judge has rightly set aside the said judgment and acquitted the accused. In this view of the matter, I find no ground to interfere with the judgment of the learned Sessions Judge."
12. The above said view is no more good in law, in view of the decision of the Apex Court in Pawan Kumar Ralli's case, the relevant portion of which has been extracted supra. The decision rendered by the Apex Court 12 in Pawan Kumar Ralli's case, comes to the aid of the petitioner and negates the contention urged on behalf of the respondent. The said decision of the Apex Court goes to the root of the matter and the decision of this Court in Sri T.S. Muralidhar, cannot stand.
In the result, petition is allowed and the impugned orders are quashed. The proceedings conducted by the Magistrate, from the stage of taking cognizance being vitiated, also stand quashed. The Magistrate shall now proceed with the case from the stage prior to the taking of cognizance and the issuance of process.
Return the LCR to the Magistrate without any delay.
Sd/-
JUDGE ca