Karnataka High Court
Shri. G.R. Subramani vs Shri. B.N. Nanda Gopal on 30 October, 2023
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2023:KHC:38272
CRL.RP No. 1434 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF OCTOBER, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
CRIMINAL REVISION PETITION NO. 1434 OF 2015
BETWEEN:
1. SHRI. G.R.SUBRAMANI
S/O SHRI. G.C.RANGAPPA
AGED ABOUT 31 YEARS,
RESIDENT OF RAJENDRAHALLI
BYRAKUR HOBLI
MULBAGAL TALUK.
...PETITIONER
(BY SRI GANESH KUMAR R., ADVOCATE)
AND:
1. SHRI. B.N.NANDA GOPAL
S/O N. NANJAPPA SHETTY
AGED ABOUT 43 YEARS,
RESIDING AT NEAR TEACHER COLONY
Digitally signed ST. ANNES SCHOOL, M.H.HALLI ROAD
by SHARANYA T
Location: HIGH MULBAGAL.
COURT OF ...RESPONDENT
KARNATAKA
(BY SRI H.J. ANANDA, ADVOCATE)
THIS CRL.RP IS FILED U/S.397 R/W 401 OF CR.P.C
PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT DATED
26.11.2015 IN CRL.A.NO.28/2015 PASSED BY THE PRL.
DISTRICT AND SESSIONS JUDGE, KOLAR AND ALSO SET
ASIDE THE JUDGMENT DATED 20.04.2015 PASSED BY THE
PRL. CIVIL JUDGE AND JMFC, MULBAGAL IN C.C.NO.355/2010
AND ACQUIT THE PETITIONER.
THIS PETITION COMING ON FOR HEARING THIS DAY,
THE COURT MADE THE FOLLOWING:
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NC: 2023:KHC:38272
CRL.RP No. 1434 of 2015
ORDER
Heard the counsel for petitioner and the counsel appearing for the respondent.
2. This Revision petition is filed praying this Court to set-aside the order of conviction in C.C No.355/2010 for the offence punishable under Section 138 of Negotiable Instrument Act and also set-aside the order passed in Crl.A No. 28/2015 confirming the order of conviction and grant such other relief.
3. The factual matrix of the case of the respondent/complainant before the Trial Court that the petitioner herein had approached the respondent for a hand loan of Rs.2,00,000/- for construction of house at Rajendrahalli village, Mulbagal Taluk. It is also contended that his request has been considered and he had paid an amount of Rs.1,90,000/- and when the respondent insisted him to repay the amount, he gave the post dated cheque dated 15.07.2009 and when the same was presented through his banker at Mulbagilu, the Cheque -3- NC: 2023:KHC:38272 CRL.RP No. 1434 of 2015 was returned as dishonored with an endorsement of insufficient fund and hence, he had issued a legal notice on 13.01.2010 through the registered post as well as certificate of posting and the legal notice issued under registered post was returned as ' addressee not in station ' and notice served under certificate of posting was served on him. Inspite of service of notice, he did not come forward to make the payment and hence, filed the complaint.
4. The complaint which was filed before the Court was dismissed for non-prosecution and on the very next day, an application was filed for restoration before the Trial Court and the Magistrate has recalled the order and proceeded against the petitioner herein and both of them have participated in the proceedings and the complainant has examined himself as PW1 and also examined Branch Manager as PW2 and got marked Ex.P1 to Ex.P11. After the conclusion of the evidence, the accused was also examined under Section 313 of Cr.P.C but, he did not step -4- NC: 2023:KHC:38272 CRL.RP No. 1434 of 2015 into the witness box and to examine any of the witnesses in order to substantiate his defense.
5. The learned Magistrate taking into note of the material available on record, comes to the conclusion that the complainant has substantiated his case and hence, imposed fine of Rs.3,50,000/- and ordered to pay an amount of Rs.3,30,000/- to the complainant and remaining Rs.20,000/- vest with the State.
6. Being aggrieved by the judgment and an order of sentence, an appeal is filed before the appellate Court and the appellate Court has also confirmed the same on re-appreciation of both oral and documentary evidence available on record and hence the present revision petition is filed before this Court.
7. The counsel appearing for the petitioner would vehemently contend that once the complaint was dismissed and the Magistrate has committed an error in recalling the said order and the Court become functus officio and ought not to have recall the order and proceeded against the petitioner herein. The counsel also -5- NC: 2023:KHC:38272 CRL.RP No. 1434 of 2015 vehemently contend that the Cheque in question was never issued by the petitioner and it was obtained by wrongful method and the debt is also not legally recoverable debt come into force and there must be any financial transactions between the parties, there is no financial transactions between them. The counsel also vehemently contend that the respondent is very much aware the Cheque in question was obtained by his friend Doddathahalli Lokesh, who was staying in the petitioner's room and only in collusion with the respondent and his friend with ill-intention the alleged story of hand loan was cooked-up and this aspect has not been considered by the Trial Court as well as the appellate Court and even during the respondent's evidence, no documents are produced in support of alleged loan transaction and inspite of it, both the Courts have committed an error.
8. The counsel his support of his argument he relied upon the judgment of the Apex Court passed in Crl.A No.74/1976 decided on 05.08.1976 in case of Bindeswari Prasad Singh V/s Kali Singh and the -6- NC: 2023:KHC:38272 CRL.RP No. 1434 of 2015 counsel brought to notice of this Court paragraph No.4, wherein the Apex Court has observed with regard to the jurisdiction of the Magistrate became functus officio and had no power to review or recall that order on any ground whatsoever i.e., dismissal of the complaint and set-aside the order of the Magistrate and quash the proceedings.
9. The counsel also in support of his argument, he relied upon the judgment of Punjab and Haryana at Chandigarh in CRM-M-3505-2020 in case of M/s Minikin Agro India Pvt. Ltd. and another V/s State of Punjab and others and brought to notice of this Court page No.12 wherein an observation is made the provision of law that emerges from a reading of the above said judgments i.e., judgment of the Apex Court held that once a case was finally decided by a Magistrate, then, the said Court became functus officio and has no power to review or recall the said order on any ground whatsoever. The order vide which a case has been dismissed in default, whether on the ground of the copy of the complaint having not been supplied or for want of prosecution, would be a -7- NC: 2023:KHC:38272 CRL.RP No. 1434 of 2015 final order and thus, no application for reviewing or recalling of the said order would be maintainable and it is further observed that there is no provision in the Cr.P.C vesting in the Magistrate inherent jurisdiction or giving the Magistrate to power to review/recall a final order. Even the provisions under Section 362 of Cr.P.C would bar the Magistrate from recalling/reviewing such an order as an order vide which a petition or a complaint has been dismissed in default, cannot be stated to be a case of clerical or arithmetical error in the order as envisaged under Section 362 of Cr.P.C and hence, the impugned order is illegal and is liable to be set-aside.
10. The counsel by referring these two judgments would vehemently contend that the Magistrate has no power to recall the said order and hence, the judgment and decree passed by the Trial Court as well as the appellate Court are not maintainable and the same is suffers from legality and correctness and hence, this Court has to invoke revisional jurisdiction. -8-
NC: 2023:KHC:38272 CRL.RP No. 1434 of 2015
11. The counsel appearing for the respondent in his argument he vehemently contend that the very order of recall made by the Trial Court is not challenged by the petitioner herein, the petitioner even after the restoration of complaint participated in the proceedings in C.C No.355/2010 and not raised any objections before the Trial Court as well as not raised any objections before the appellate Court and for the first time, even though not raised the said ground in the revision petition, only during the course of argument has raised the said contention before this Court and when the petitioner herein has participated without challenging the order or recalling the same and when the Trial Court has passed an order on merits with regard to the transaction between the petitioner and the respondent herein and now cannot raise the said ground for the first time before this Court.
12. The counsel in support of his argument he relied upon the judgment of this Court passed in Crl.R.P No.1242/2021 dated 8th day of April, 2022 in case of M/s A Seating A Partnership Firm V/s M/s Nandini -9- NC: 2023:KHC:38272 CRL.RP No. 1434 of 2015 Modulars and the counsel would vehemently contend that this Court in detail discussed the material on record and also the principles laid down in the judgments which are referred in the judgment and formulated the point that whether the appellate Court has committed an error in setting aside the order and remanding the matter to the Trial Court to consider the delay and whether it requires interference of this Court and framing such a point for consideration and considering the point for consideration taken note of the fact that the appellate Court has not committed an error in remanding the matter to consider the issue involved between the parties and also in paragraph No.23 has also taken note of the judgment of Pawan Kumar Ralli wherein an observation is made that the Supreme Court was not laying down a legal proposition that without even filing an application for condonation of delay at initial stage, the complainant can be given an opportunity in respect thereof at any stage of the proceedings. But, the fact is that when the issue of limitation is raised before the Appellate Court, immediately
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NC: 2023:KHC:38272 CRL.RP No. 1434 of 2015 the complainant has filed an application before the Appellate Court for condonation of delay and the Appellate Court comes to the conclusion that the delay cannot be considered in Appellate Court usurping the powers of the Trial Court and the same has to be dealt with by the Trial Court and the same is in accordance with the judgment of the Appellate Court.
13. The counsel referring this principles referred in the judgment would vehemently contend that for the first time, the issue was raised before the Appellate Court and having considered the same this Court comes to the conclusion that the Appellate Court has not committed any error in setting the judgment and directed the complainant to file a necessary application to condone the delay on the ground that issue was raised for the first time before the Appellate Court. The counsel by referring this judgment would vehemently contend that before the Trial Court as well as the Appellate Court and also in this Court while filing the revision petition no such grounds are urged, only for the first time during the course of argument, the said
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NC: 2023:KHC:38272 CRL.RP No. 1434 of 2015 ground urged and hence, the said judgment is aptly applicable to the case on hand since, for the first time the same has been urged and recall order has not been questioned before this Court.
14. The counsel also referred the judgment reported in (2015) 14 Supreme Court Cases 399 in case of Iris Computers Limited V/s Askari Infotech Private limited and others and the counsel appearing for the respondent brought to notice of this Court paragraph No.9 wherein discussed with regard to Section 200 and 202 of the Code and the counsel by referring this judgment would vehemently contend that first stage of dismissal of complaint before the issuance of process arise under Section 203 of the code, at which stage the accused has not role to play. Subsequent to issuance of process, the question of the accused approaching the court by making an application under Section 203 of the code for dismissal of complaint is impermissible because by then the stage of Section 203 is already over and the Magistrate has proceeded further to Section 204 stage.
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NC: 2023:KHC:38272 CRL.RP No. 1434 of 2015 The counsel also brought to notice of this Court that dismissal of complaint by the Magistrate under Section 203 evidently falls into the former stage of the proceedings when the Magistrate has to base his opinion as to the existence of sufficient ground for proceeding towards the second stage on the statements of the complainant and the witnesses along with the result of the inquiry conducted under Section 202. The counsel by referring this principles vehemently contend that in the case on hand the complaint was dismissed invoking Section 202 and no process was issued against the petitioner herein and only the process was issued after restoring the complaint and when such being the case, the very contention of the petitioner's counsel that the Court become functus officio cannot be accepted.
15. The counsel also would vehemently contend that when the petitioner participated after the restoration of the complaint and assisted the Trial Court in determining the case on finality with regard to the transaction in issuance of cheque and also no such ground
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NC: 2023:KHC:38272 CRL.RP No. 1434 of 2015 was urged before the Trial Court and as well as before the appellate Court and for the first time, the said ground urged before this Court while arguing the matter and hence, the contention of the petitioner cannot be accepted.
16. Having heard the petitioner's counsel and also the counsel for the respondent and in keeping the principles laid down in the judgments referred supra by the petitioner's counsel and also the counsel appearing for the respondent, the point that would arise for the consideration of this Court are:
1) Whether this Court can invoke revisional jurisdiction in a case on hand?
2) Whether the Court of Magistrate become a functus officio as contended by the petitioner's counsel?
3) What order?
POINT Nos.1 and 2:
17. Having heard the petitioner's counsel and also the counsel appearing for the respondent, no dispute with regard to the fact that the complaint is filed under Section
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NC: 2023:KHC:38272 CRL.RP No. 1434 of 2015 138 of Negotiable Instrument Act. It is also not in dispute that the very same complaint was dismissed before the issuance of process and also it is not in dispute that on the very next day, an application is filed before the Magistrate for restoring the complaint and the same was allowed. It is also not in dispute that the Magistrate has restored the petition based on the application filed by the complainant. It is also not in dispute that the complaint was dismissed before the issuance of the process invoking Section 204 of Cr.P.C, but the impugned order passed by the Trial Court amounts to dismissal of complaint under Section 203 of Cr.P.C and the same may be not on the merits and the same is on the default.
18. It is also important to note that there is no dispute with regard to the principles laid down in the judgments referred supra, the Magistrate become functus officio once the complaint is dismissed as held by the Apex in the judgment referred supra by the petitioner's counsel and also the Punjab and Haryana High Court at Chandigarh has also taken note of the same in the
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NC: 2023:KHC:38272 CRL.RP No. 1434 of 2015 judgment in case of M/s Minikin Agro India Pvt. Ltd., and another V/s State of Punjab and others, but in the case on hand it has to be noted that the order of dismissal was passed prior to the issuance of process and an application was filed on the very next day for restoration of the same and no doubt as held in the Apex Court in the judgment referred by the respondent's counsel wherein discussed with regard to Section 200 to 204 discussed with regard to exercising the power under Section 203 and 204 of Cr.P.C and no doubt the order passed by the Trial Court invoking Section 203 is only an order passed is passed before the appearance of the respondent.
19. It is also important to note that the accused/petitioner was kept quite and not raised the said ground for recalling the order by the Magistrate before the Trial Court when the proceedings were taken place and also it is clear that even in the appellate Court not raised the same issue with regard to the recalling of the order and restoration of the complaint. Having perused the revision petition before this Court also no such ground is
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NC: 2023:KHC:38272 CRL.RP No. 1434 of 2015 urged before this Court and only ground is urged with regard to the consideration of the complaint on merits by the Trial Court as well as the appellate Court, but during the course of argument, the counsel appearing for the revision petitioner vehemently contend that the Magistrate become functus officio. No doubt I have already pointed out that the Magistrate can consider the material available on record if the complaint is before him, once the complaint is dismissed under Section 203 of Cr.P.C, the Magistrate becomes functus officio, but the fact is that when the petitioner herein kept quite for a longer period and the said ground is not urged before the Magistrate and also he did not challenge the order of recalling the order and restoring the complaint before the revisional Court as well as this Court and for the first time in the revision petition has raised the same and he kept quite from 2015 to 2023 and for the first time before this Court raised the said contention, he had participated in the Trial Court while considering the matter on merits in C.C No.355/2010 and no such ground was urged and no such order was
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NC: 2023:KHC:38272 CRL.RP No. 1434 of 2015 questioned before the Trial Court and also before the appellate Court and also before this Court not challenged the order of restoring the complaint and for the first time he had raised the ground before this revisional Court that too during the course of argument and when such ground urged before this Court for the first time and he had participated in the Trial Court on merits in C.C No.355/2010 and also before the Appellate Court in Crl.A No.28/2015 and when the order has not been challenged before the concerned Court as well as the appellate Court and also before this Court and the said order of restoring of the complaint has attained its finality and knowingfully well known that he had participated in the proceedings both in the criminal proceedings as well as in the criminal appeal and for the first time he has raised the objections cannot be raised when the matter is considered on merits and hence the very contention of the petitioner counsel that the Magistrate becomes functus officio cannot be accepted and principle laid down in the judgment of the Apex Court and also the judgment of the Punjab and
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NC: 2023:KHC:38272 CRL.RP No. 1434 of 2015 Haryana High Court not applicable to the facts of the case on hand wherein a question was challenged before the respective Courts with regard to the restoration of complaint itself but, here is the case of not challenged the order of restoration and only challenged the order on merits passed by the Trial Court as well as the Appellate Court and when he kept quite and order of the Magistrate has attained its finality and if the petitioner has challenged the order of restoration before this Court or before the appellate Court then there would have been force in the contention of the petitioner's counsel and having acquiesced himself with regard to the restoration of the complaint and participated in the proceedings of the Trial Court as well as the Appellate Court and for the first time he has raised the ground before this Court and hence I do not find any ground in the contention of revision petitioner's counsel with regard to the very contention that Magistrate becomes functus officio cannot be accepted.
20. Now coming to the merits of the case is concerned, since the petitioner has urged the main
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NC: 2023:KHC:38272 CRL.RP No. 1434 of 2015 grounds in the revision petition and only raised the technically before this Court while arguing the matter and hence this Court has to look into the merits of the case.
21. Having taken note of the contention of complainant/respondent, it is the specific case that the complainant/respondent had advanced the hand loan of Rs.1,90,000/- to the accused in respect of the said debt he had issued the cheque and issuance of cheque is not disputed and only it is the contention that he had given to his roommate one Lokesh and the said cheque has been misused and presented before the Court and in order to substantiate his contention that he had given the cheque to Lokesh and he has not made any efforts to examine the said Lokesh before the Trial Court and when he had taken the said defense he ought to have examined the said Lokesh.
22. It is also important to note that though he had taken such a defense in the proceedings, he himself has not stepped into the witness box to substantiate his contention that the cheque was misused by the
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NC: 2023:KHC:38272 CRL.RP No. 1434 of 2015 complainant and the cheque was given in favour of Lokesh and no doubt it is settled law also that if the complainant's case is not sustainable and if any answers are elicited from the mouth of the complainant with regard to the said defense is concerned, then no need to examine or step into the witness box, but the said circumstances is not warranted in the case on hand, no such answers are elicited from the mouth of the PW1 with regard to the defense which he had taken during the course of cross of PW1. The said suggestion was made in the cross- examination of PW1 and PW1 categorically says that he made the payment through cheque and the same was encashed by the petitioner herein.
23. It is also the contention that no notice has been served and the fact that notice was sent through certificate of posting and also through the registered post and admittedly registered post which was returned with an endorsement and the same is not served and the certificate of notice was also sent to him and the DW1 was also examined who is none other than the branch post
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NC: 2023:KHC:38272 CRL.RP No. 1434 of 2015 master and he also says that notice sent to him through registered post was not served but he was cross-examined by the complainant's counsel and answer is elicited from the mouth of PW1 that the notice sent through the certificate of posting and the same was delivered to the petitioner and when such evidence is available before the Court and the same is not rebutted by the petitioner herein and service of notice against the petitioner in terms of the evidence of the PW1 is clear that the notice was also served. The evidence of complainant has not been rebutted and if the same is rebutted during the course of cross-examination and answer elicited from the mouth of PW1 then, the very contention of the petitioner's counsel that no need to enter into the witness box can be accepted but, no such material is elicited from the mouth of PW1 and apart from that the PW1 has also examined the bank manager as PW2 with regard to the dishonor of the cheque and when the material is placed before the Court that the payments are made through cheque and the cheque was also encashed and the same is not rebutted and even on
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NC: 2023:KHC:38272 CRL.RP No. 1434 of 2015 merits also the petitioner has not made out any ground to comes to other conclusion to exercise the powers under the revisional jurisdiction that both the Trial Court as well as the Appellate Court comes to an erroneous conclusion on merits on considering the material available on record. Hence, I do not find any merit in the revision petition to comes to a other conclusion.
24. The counsel appearing for revision petitioner would submits that the document which clearly discloses that for having made the payment of Rs.1,40,000/- that is also by way of cheque payment and in respect of remaining of amount of Rs.50,000/- no document is produced. The Trial Court taken note of the same in the order in paragraph No.19 that the cheque was issued in the month of July-2007 but, the payment of Rs.40,000/- was made in the month of February-2008 by way of cash to the accused and also paid an amount of Rs.50,000/- to the accused through cheque dated 20.02.2008 and also deposited an amount of Rs.1,40,000/- to the account of the accused on 03.11.2007. Having considered the
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NC: 2023:KHC:38272 CRL.RP No. 1434 of 2015 payment of Rs.1,00,000/- on 03.11.2007 through cheque as well as payment of Rs.50,000/- to the accused through cheque dated 20.02.2008 and payment made through cheque to the tune of Rs.1,50,000/- and an amount of Rs.40,000/- was paid by cash according to the complainant and the cheque amount is Rs.2,00,000/- and admittedly I have already pointed out that the cheque was given in the year 2009 though the transaction of the year 2007 and 2008 and the Trial Court has also taken note of the fact that amount of deposited 5 ½ years back and also taken note of the judgment of 2006 (I) KCCR 366 in case of Mrs.Shaila.P.Prabhu V/s Nagendra.K.Mallya and another and hence awarded an amount of Rs.3,50,000/- and having considered the payment by way of cheque to the tune of Rs.1,00,000/- in the year 2007 and an amount of Rs.50,000/- in the month of February- 2008 and other contention that an amount of Rs.40,000/- was paid by way of cash. It is appropriate to modify the order of the Trial Court to pay the amount of Rs.3,00,000/- instead of Rs.3,50,000/-.
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NC: 2023:KHC:38272 CRL.RP No. 1434 of 2015 POINT No.3:
23. In view of the discussions made above, I pass the following:
ORDER The Revision Petition is allowed in part. The order of the Trial Court dated 20.04.2015 is modified by reducing the amount to Rs.3,00,000/- instead of Rs.3,50,000/- and out of that amount, an amount of Rs.2,90,000/- is payable in favour of the complainant and Rs.10,000/- is vest with the State. The amount of Rs.3,00,000/- is payable within a period of one month. If the amount is not paid within the stipulated period, the amount awarded by the Trial Court i.e., Rs.3,50,000/- is payable to the respondent/complainant as ordered by the Trial Court.
Sd/-
JUDGE RHS List No.: 1 Sl No.: 6