Karnataka High Court
Smt. Renuka W/O Sharnappa Hanumanavar vs Shakuntala D/O Yallappa Pujar on 26 May, 2023
Author: V.Srishananda
Bench: V.Srishananda
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CRL.P No. 100746 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 26TH DAY OF MAY, 2023
BEFORE
THE HON'BLE MR JUSTICE V.SRISHANANDA
CRIMINAL PETITION NO. 100746 OF 2023 (482)
BETWEEN:
SMT. RENUKA W/O. SHARNAPPA
HANUMANAVAR, AGE: 40 YEARS,
OCC: HOUSEHOLD,
R/O: KUMBAR ONI,
NEAR GANESH TEMPLE,
NAVALGUND,
TQ: NAVALGUND,
DIST: DHARWAD-582208.
...PETITIONER
(BY SRI. ROHIT S. PATIL, ADVOCATE)
AND:
SHAKUNTALA D/O. YALLAPPA PUJAR,
Digitally signed by
AGE: 62 YEARS,
CHANDRASHEKAR
LAXMAN
KATTIMANI
CHANDRASHEKAR
LAXMAN
KATTIMANI
OCC: RTD, TEACHER ,
Date: 2023.05.31
12:08:51 -0700
R/O: NEAR AMAR SWIMMING POOL,
GADAG,
TQ AND DIST: GADAG- 582101.
...RESPONDENT
(BY SRI. G.N. NARASAMMANAVAR, ADVOCATE)
THIS CRIMINAL PETITION IS FILED U/SEC. 482 OF
CR.P.C. SEEKING THAT THE IMPUGNED ORDER DATED
27.01.2020 PASSED BY I ADDL. CIVIL JUDGE AND JMFC I,
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CRL.P No. 100746 of 2023
GADAG IN CC NO. 321/2020 (PCR NO. 19/2020) FOR THE
OFFENCES P/USEC. 138 OF NI ACT BE QUASHED AND
CONSEQUENTLY THE IMPUGNED ORDER DATED 16.02.2023
PASSED IN CC NO. 321/2020 U/SEC. 142(b) OF NI ACT R/W
SEC. 5 OF THE LIMITATION ACT ON THE FILE OF I ADDL. CIVIL
JUDGE AND JMFC I, GADAG BE SET ASIDE.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
Heard Sri. Rohit S. Patil, learned counsel for the petitioner and Shri. G. N. Narasamanavar, learned counsel for respondent. Perused the records on admission.
2. The present petition is filed under Section 482 of Cr.P.C. with the following prayer :-
"Wherefore petitioner humbly prays as under:
A. That the impugned order dated 27.01.2020 passed by 1 st Additional Civil Judge and JMFC I, Gadag in C.C. No.321/2020 (PCR No.19/2020) for the -3- CRL.P No. 100746 of 2023 offences punishable under Section 138 of N.I. Act be quashed.
B. Conseq uently the impugned order dated 16.02.2023 passed in CC No.321/2020 under Section 142(b) of N.I . Act R/w. Section 5 of the Limitation Act on the file of 1 s t Additional Civil Judge and JMFC I, Gadag be set aside.
C. That any other reliefs deemed fit in the circumstances of the case be passed."
3. The brief facts of the case are as under :-
Petitioner is facing criminal trial in respect of offence punishable under Section 138 of N.I. Act on the file of JMFC I Court, Gadag. Admittedly a private complaint was filed belatedly and an application is also filed along with the said complaint seeking condonation of delay of 14 days under Section 142(2) of Negotiable Instrument Act. The learned Magistrate without issuing notice on condonation of delay application, directly recorded the sworn statement of the complainant -4- CRL.P No. 100746 of 2023 and without condoning the delay, took cognizance of the offence and summoned the accused/petitioner before the Trial Court. The petitioner soon after appearing before the Trial Court, filed an application seeking discontinuation of criminal proceedings in view of the fact that the delay was not condoned.
4. While rejecting the said application filed by the accused, the Trial Court has observed that non condonation of delay is a mistake of the Court and accused cannot get any right to seek favorable orders on account of a mistake committed by the Court.
5. Shri. Rohit S. Patil learned counsel for the petitioner contends that the said approach of the Trial Court is not only illegal but also perverse, which seeks interference by this Court under Section 482 of Cr.P.C.
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6. Shri. G. N. Narasammanavar, , learned counsel for the respondent rightly submits that suitable orders may be passed.
7. In view of the rival contentions, this Court perused the material on record meticulously.
8. Admittedly there is a delay of 14 days in filing the private complaint and application also filed by the respondent/complainant seeking the condonation of delay. Learned Trial Magistrate without issuing notice on application seeking condonation of delay, further proceeded with the case and recorded sworn statement and also took cognizance. The said approach of learned Trial Magistrate in recording sworn statement is opposes to the principles of law in Indian Bank Association and others Versus Union of India and others reported in AIR 2014 Supreme Court 2528 . No sworn statement needs to be recorded in view of -6- CRL.P No. 100746 of 2023 Indian Bank Association and others (supra). Learned Magistrate has adopted a wrong procedure in recording sworn statement of the complainant in utter disregard to the decision of the Hon'ble Apex Court.
9. However insofar, condonation of delay is concerned, the Trial Magistrate is required to consider the application for condonation of delay and pass appropriate orders and then proceed to took cognizance of the offence against the petitioner/accused and proceed with the case in accordance with law.
10. Accordingly, the following order is passed:
ORDER The impugned order is set aside. The matter is remitted to the trial Court for fresh disposal in accordance with law.-7-
CRL.P No. 100746 of 2023
Learned Trial Magistrate directed to consider the application filed by the complainant seeking condonation of delay of 14 days and objection filed by accused and pass appropriate order on said application and dispose of the matter in accordance with law.
Sd/-
JUDGE SMM List No.: 2 Sl No.: 24