Karnataka High Court
Hiriyappa D B S/O. Late Basappa vs Nirani Sugars Limited on 10 December, 2024
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NC: 2024:KHC-D:18038
WP No.103964 of 2023
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 10TH DAY OF DECEMBER, 2024
BEFORE
THE HON'BLE MS. JUSTICE J.M.KHAZI
WRIT PETITION NO.103964 OF 2023 (GM-RES)
BETWEEN:
HIRIYAPPA D.B., S/O. LATE BASAPPA
AGED ABOUT 61 YEARS,
PROPRIETOR OF SRI. LAXMI AGENCIES,
(COAL BRIQUETS INDUSTRY),
PLOT NO.400A, INDUSTRIAL AREA,
BAIKAMPADY, MANGALURU-575011.
...PETITIONER
(BY SRI. M.T. NANAIAH, SENIOR COUNSEL AND
SRI. K.L. PATIL, ADVOCATE)
AND:
NIRANI SUGARS LIMITED
NO.166, KULALI CROSS, JAMKHANDI ROAD,
MUDHOL-587313 AND CORPORATE OFFICE AT
9TH FLOOR, WORLD TRADE CENTER,
YESHWANTHPUR, BENGALURU-560022,
R/BY ITS SALES ASSISTANT
SHRI. NINGARAJ A. NIRANI,
Digitally signed by AGED ABOUT 31 YEARS.
MOHANKUMAR B ...RESPONDENT
SHELAR
(BY SRI. AJAY KADAKOL AND
Location: HIGH
COURT OF SRI. HARISH S. MAIGUR, ADVOCATES)
KARNATAKA
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA R/W SEC.482 OF CR.P.C, PRAYING
TO, ISSUE A WRIT OF CERTIORARI OR ORDER OR DIRECTION TO
QUASH ORDER DATED 22/12/2017 IN CC. NO.677/2017 PASSED BY
THE LEARNED JMFC, JAMAKHANDI VIDE ANNEXURE-D BY ALLOWING
THE APPLICATION FILED UNDER SEC.451 AND 457 OF CR. P.C. AND
DIRECT THE LEARNED JMFC, JAMAKHANDI TO RETURN THE
PASSPORT OF THE PETITIONER TO HIM.
THIS PETITION, COMING ON FOR FURTHER HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:
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NC: 2024:KHC-D:18038
WP No.103964 of 2023
CORAM: THE HON'BLE MS. JUSTICE J.M.KHAZI
ORAL ORDER
(PER: THE HON'BLE MS. JUSTICE J.M.KHAZI) Petitioner who is accused before the trial court has filed this petition to quash the order dated 22.12.2017 in C.C.No.677/2017 passed by the trial court, rejecting the application filed by him to return the passport and allow the said application.
2. For the sake of convenience, parties are referred to by their ranks before the trial court.
3. In support of the petition, the accused has contended that the order is bad in law and arbitrary and as such, liable to be quashed. The proceeding under Section 138 of the Negotiable Instruments Act, 1881 (N.I.Act) is summary in nature and the offence is bailable. Therefore, the trial court ought not to have imposed the condition to surrender his passport to the court. In bailable offences, the trial court has no power to impose the condition. The material placed on record before the -3- NC: 2024:KHC-D:18038 WP No.103964 of 2023 learned Magistrate clearly indicates that the accused is also an importer of coal and he visits several countries in connection with his business. On account of holding of the passport, the accused has incurred heavy loss. In the several pronouncements of the Hon'ble Supreme Court and several High Courts, it is held that passport cannot be impounded and thereby curtail the movement of the person in violation of Article 19 of the Constitution of India. The order is not only illegal but opposed to the statue. The accused has already furnished surety. The impugned order suffers from vice of non-application of mind is unjust, arbitrary and illegal and hence, the petition.
4. In support of the contentions raised in the petition, accused has relied upon the following decisions
i) Nitin Shanbhukumar Kasliwal vs Debt Recovery Tribunal-1 and Another (Nitin)1. 1 W.P.No.26333/2023 (DD 06.12.2023) -4- NC: 2024:KHC-D:18038 WP No.103964 of 2023
ii) Suresh Nanda vs Central Bureau of Investigation (Suresh Nanda)2.
iii) Sultan Kamruddin Dharani vs The Union of India and Others (Sultan)3.
iv) Mahathru Technologies vs Creative Infotech (Mahathru)4.
v) Sri.Praveen Surendiran vs State of
Karnataka and Another (Praveen
Surendiran)5.
5. On the other hand, learned counsel
representing the complainant submitted that neither it is the case of impounding of the passport nor seizer. At the time of granting bail, one of the conditions imposed was that the accused shall not leave the jurisdiction of the court and also leave the country without permission of the trial court. As a consequence, the accused was 2 (2008) 3 SCC 674 3 Crl.W.P.865/2007 (DD 19.09.2008) 4 LAWS(KAR)-2020-11-347 5 Crl.P.No.1892/2022 (DD 21.03.2022) -5- NC: 2024:KHC-D:18038 WP No.103964 of 2023 directed to handover his passport to the court. Accordingly, the accused has followed the orders of the court and handed over his passport and it is kept with the trial court.
6. After detailed trial, the accused is convicted by the trial court. It is also confirmed by the Session's court by dismissing the appeal filed by the accused. In fact, the criminal revision petition filed by the accused is pending before this court. Despite directing him to deposit 20% of the fine amount as a condition precedent for suspending the sentence, the accused has not complied with the same. Having not challenged the order directing the accused not to leave the jurisdiction of the court as well as not to leave the country without permission of the trial court and also to submit his passport, at this stage, it is not open to the accused to challenge the same.
7. The timing of the accused in coming up with this petition after being convicted by the trial court as -6- NC: 2024:KHC-D:18038 WP No.103964 of 2023 well as the first appellate court, the intention of the accused is obvious. He wants to remove him away from the jurisdiction of the court as well as from the country to escape from paying the fine and in default to undergo imprisonment and pray to dismiss the petition.
8. In support of his arguments, learned counsel for complainant relied upon the following decision.
i) Smt.Charusmitha P.N. vs State of Karnataka and Another (Charusmitha)6.
9. Heard arguments and perused the record.
10. The undisputed facts are that accused has purchased coal from the complainant for a total sum of ₹5,59,30,000/- and issued in all 27 cheques of various sums. When accused failed to pay the amount due from him, the complainant has presented the cheques and when they were dishonored, he has issued notices. It is contended by the complainant that accused has received the legal notice in respect of one set of 6 Crl.P.NO.12208/2024 (DD 23.11.2024) -7- NC: 2024:KHC-D:18038 WP No.103964 of 2023 cheques and intentionally refused to receive the other notice sent in respect of the other set of cheques and on non-compliance of the same, the complainant filed the complaint.
11. On service of summons, accused has appeared and contested the matter. He has taken up a defence that cheques in question were issued by way of security and the amount due has already paid and therefore, the complainant had no authority to present the cheques for realisation and sought for dismissal of the complaint.
12. In addition to himself, the complainant has examined two managers of the bank as PWs.1 to 3 and got marked Exs.P1 to 78.
13. During the course of his statement, the accused has denied the incriminating evidence. -8-
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14. In fact, he stepped into the witness box and examined himself as DW.1 and relied upon Exs.D1 to
22.
15. Trial court rejected the defence of the accused that the amount due under the cheques are already paid and therefore, the complainant was under
an obligation to return the cheques. Based on the evidence led by the complainant, the trial court convicted the accused and sentenced him to pay fine of ₹5,59,30,000/-, in default, to undergo simple imprisonment for two years.
16. The accused has unsuccessfully challenged the judgment and the sentence imposed by the trial court before the sessions court, which came to be dismissed.
17. Accused has challenged the same before this court in criminal revision petition and it is pending. -9-
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18. It is true that the offence punishable under Section 138 of N.I.Act is bailable. Therefore, on his appearance before the court, the trial court has granted bail to the accused. The bail is granted to him as of right. Of course, to ensure the presence of accused, the trial court has directed him to execute personal bond and also furnish surety. Having regard to the heavy stake involved and looking to the nature of the business carried out by the accused, the trial court has rightly imposed a condition that he shall not leave the country without permission of the trial court and directed him to submit his passport. Of course, the accused has obeyed the directions of the trial court and submitted his passport.
19. Thus, as required by Section 436 Cr.P.C., in a case involving bailable offences, when the accused prepared to give bail, he shall be released on bail, the trial court has granted accused bail. The object of the proviso and explanation inserted with effect from
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NC: 2024:KHC-D:18038 WP No.103964 of 2023 23.06.2006 is to see that in a case involving bailable offences, the accused shall not remain in custody for the reason that he is unable to furnish any surety and in such cases, he shall be released without any sureties. This is not the scenario in the present case.
20. While granting bail, the courts are also to be mindful of the requirement of securing the presence of the accused to answer the charges and ultimately on conviction to undergo the sentence. Therefore, looking to the high stacks involved, the trial court was within its powers to restrain the accused from leaving the country without its permission and to ensure compliance has directed the accused to submit his passport, which he has done without any murmur. In fact, he has not challenged the said condition. Of course, throughout the pendency of the trial as well as the appeal, the accused never had the occasion to leave the country and consequently he has not sought
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NC: 2024:KHC-D:18038 WP No.103964 of 2023 permission from the trial court or the sessions court as the case maybe.
21. After filing the revision petition before the court, the accused has approached the trial court to release the passport. The trial court has rightly rejected his application by holding that after the disposal of the case and during the pendency of the petition before the High Court, it has become functus officio and has no power to release the same. Challenging the same, the accused has come up with this petition.
22. Now the revision petition is filed by the accused challenging his conviction by the trial court as well as the session court and it is pending before this court. When the accused challenged his conviction either in an appeal or revision, normally, while suspending the sentence the condition would be imposed directing the accused to deposit the entire fine amount. In fact, it is a condition precedent for filing the appeal or revision itself. When the accused failed to
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NC: 2024:KHC-D:18038 WP No.103964 of 2023 make the deposit on his own, normally in IPC and other offences, the accused would be directed to deposit the entire fine amount. However, in cases arising out of offence punishable under Section 138 of N.I.Act, in appeal or revision against conviction, looking to the heavy amount of fine imposed, which would be up to double the cheque amount, normally, the accused would be directed to deposit either 50% or less or more depending on the fine imposed.
23. In the present case also while suspending the sentence, this court has directed the accused to deposit 20% of the fine amount. However, he has not complied with the said condition. When the criminal revision petition or criminal appeal is filed by the accused challenging his conviction either by the trial court which is confirmed by the session court or where the conviction is imposed by the session court by reversing the acquittal, while directing deposit of the fine amount, sentence is included stating that the 20%
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NC: 2024:KHC-D:18038 WP No.103964 of 2023 or whatever percentage of fine directed to be deposit includes the deposit made by the accused before the sessions court. What is required to be deposited while filing the criminal appeal or criminal revision petition is the fine amount and not the amount which the accused has paid to the complainant either prior to or subsequent to the presentation of the cheque.
24. In the present case, the learned senior counsel time and again drawn the attention of the court that the 20% of amount directed to be deposited by the accused includes earlier payments made before the judgment of the trial court, which is not correct. While suspending the sentence, the accused is required to either deposit the entire fine amount or whatever percentage directed by the session court or the High Court as the case may be. If the word inclusive of the deposit already made is not included in the order, then the accused would be required to once again pay the percentage of fine directed by the court, in addition to
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NC: 2024:KHC-D:18038 WP No.103964 of 2023 the deposit already made before the sessions court. Therefore, the argument of the learned senior counsel that the accused has already deposited 20% of the fine amount is not correct. In fact, the documents produced by the complainant indicate that for non-compliance of the condition precedent for suspension of the sentence, the trial court has issued non-bailable warrant against him.
25. It is also relevant to note that under Section 138 N.I.Act, courts are empowered to impose fine, which may be extend to double the cheque amount. In the present case, the accused is fortunate enough that the trial court has only imposed fine, which is the actual cheque amount plus ₹10,000/-.
26. Of course, the prohibition imposed on the accused is not to leave the country without permission of the court. If he is having any urgency to go out of the country. Looking to the conduct of the accused, it is evident that his intention is to leave the country
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NC: 2024:KHC-D:18038 WP No.103964 of 2023 without honouring the conviction imposed against him. Of course, he is also at liberty to address arguments on the merits of the case in the revision filed by him and secure acquittal. In the above facts and circumstances, the decisions relied upon by the accused are not applicable to the case on hand.
27. Thus, from the above discussion, this court is of the considered opinion that though the writ petition is maintainable, the accused has not made out any justifiable grounds to interfere with the order passed by the trial court and accordingly, the following;
ORDER
i) The writ petition filed by the accused is here by dismissed.
ii) Send a copy of this order to the trial court through email.
Sd/-
(J.M.KHAZI) JUDGE MBS, CT:VP LIST NO.: 1 SL NO.: 34