Karnataka High Court
Sri.K.B. Vedamurthy vs M/S Laxven Chits Pvt. Ltd., on 27 January, 2020
1
R
IN THE HIGH COU RT OF KARNA TAKA
DHARWAD BENCH
DATED TH IS THE 27 T H DAY OF JANU ARY 2020
BEFORE
THE HON'BLE MR. JUSTICE P.G.M.PATIL
CRIMINAL PETITIO N NO.100177/2017
BETWEEN:
SRI K.B. VEDAMURTHY
S/O K. B. VASULINGAPPA,
AGE: 40 YEARS , OCC: BUSINESS ,
M/S SHIVANI ASSOCIATES
NEAR SHADI MAHAL,
ARVIND NAGAR, H OSAPETE,
BALLARI DIS TRICT.
... PETITIONER
(BY SRI DAYANAND M BANDI, ADVO CATE.)
AND:
M/S LAXVEN CHITS PVT. LTD .,
KLS COMPLEX, HO SAPETE,
REPRESENTED BY ITS
DIRECTOR K. GOPALKRISHNA
S/O K. LAKSHMANSHETTY ,
AGE: 63 YEARS , R/O: KLS COMOPLEX,
BALLARI ROAD, H OSAPETE,
DIST: BALLARI.
... RESPONDENT
(BY SRI MALLIKARJUNASWAMY B HIREMATH ,
ADVOCATE.)
2
THIS CRIMINAL PETITION IS F ILED UNDER
SECTION 482 OF CR.P.C., PRAYING TO SET
ASIDE/QUASH THE ORDER DATED 24.08.2016,
PASSED BY THE COURT OF III AD DL. DIS TRICT AND
SESSIONS JUDGE, BALLARI, (SITTING AT HOSAPETE)
IN CRIMINAL REVIS ION PETITION NO.5065/2015,
ETC.,.
THIS PETITION CO MING ON FOR ADMISSION THIS
DAY, THE COURT PASSED THE FOLLOWING:
ORDER
The petition is admitted and taken up for final disposal with the consent of the learned counsel appearing for the parties.
2. This is a criminal petition filed under section 482 of Cr.P.C., seeking to quash/set aside the order dated 24.8.2016, passed by the III Addl. District and Sessions Judge, Ballari, sitting at Hospete, in Crl.R.P.No.5065/2015.
3. The brief facts of the case are that, the respondent herein filed a private complaint against the petitioner in PCR No.37/2013, in the Court of Prl. Civil Judge and JMFC, Hospete, for 3 the offence punishable under section 138 of the Negotiable Instruments Act. The said case was registered in C.C.No.1458/2013. Subsequently plea of the case was recorded and the case was posted for evidence of the complainant. The complainant failed to adduce evidence in spite of sufficient opportunity. So the trial Court after giving sufficient opportunity, dismissed the complaint for non prosecution, on 7.8.2015. The respondent complainant kept quite for all the time of limitation and thereafter filed Crl.R.P.No.5065/2015 before the III Addl. District and Sessions Judge, Ballari, sitting at Hospete, for restoration of the case on the file. Although the petition was time barred, no application to condone the delay was filed. Th e petitioner had appeared in the said case, filed his objections stating that the petition is time barred. However the said Court allowed the revision petition by the 4 impugned order dated 24.8.2016 and set aside the order of dismissal and restored the case to file.
4. The petitioner has stated that the criminal revision petition was patently time barred and no application to condone the delay was filed. It is specifically contended that the revision petition filed by the respondent before the District and Sessions Judge is not maintainable under section 397 of Cr.P.C. and the Sessions Court should not have exercised the jurisdiction under section 397 of Cr.P.C. Therefore the impugned order is liable to be set aside.
5. Heard the learned counsel for the petitioner and the respondent.
6. The learned counsel for the petitioner submitted that, when the private complaint was dismissed for non prosecution, under section 256 of Cr.P.C., it amounts to acquittal of the accused 5 and therefore no revision lies under section 397 of Cr.P.C. and that only an appeal lies before this Court under section 378(4) of Cr.P.C. and therefore the impugned order passed by the Sessions Court entertaining the revision petition and allowing the same is contrary to law and that the Sessions Court had no jurisdiction to entertain the said revision petition and set aside the order of dismissal of complaint, which resulted in acquittal of the accused.
7. In support of his submission, the learned counsel has relied on the judgment in the case of V.K.Bhat vs. G.Ravi Kishore and another, Criminal Appeal No.184/2016, reported in (2016) 13 SCC 243; the judgments of this Court in Crl.P.No.2424/2014, decided on 13.7.2015 and Crl.P.No.10002/2012, decided on 3.12.2013 along with the judgment of the Hon'ble Delhi High Court, in the case of Kalpana 6 Tyagi vs. Sneha Lata Sharma, LAWS (DLH) 2003-3-27.
8. Per contra, the learned counsel for the respondent vehemently submitted that the order of dismissal of the complaint for non prosecution is revisible, since there was nothing to re-appreciate the evidence before the appellate Court and that the order dismissing the complaint does not amount to an order of acquittal under section 256 of Cr.P.C. Since there was no evidence to be appreciated by the appellate Court, the Sessions Court or the High Court can exercise the powers under section 397 of Cr.P.C., in order to consider whether the impugned order suffers from propriety, correctness and legality.
9. In support of his submission, the learned counsel has relied on the judgment in the case of Associated Cement Co. Ltd., vs. Keshavanand, (1998) 1 SCC 687; the judgments 7 of this Court in Crl.P.No.102192/2018, decided on 6.2.2019 and Crl.P.No.3918/2015 decided on 26.8.2015.
10. The undisputed facts are that the respondent filed a complaint against the petitioner herein before the Prl. Civil Judge and JMFC, Hospete, for the offence punishable under section 138 of the Negotiable Instruments Act, which was initially registered as PCR No.37/2013 and after taking cognizance of the alleged offence, C.C.No.1458/2013 was registered against the petitioner. It is also not disputed that after recording plea of the accused, the matter was posted for evidence of the complainant. The trial Court after giving sufficient opportunity to the complainant, to adduce evidence, dismissed the complaint on 7.8.2015, for non prosecution. The said order was challenged before the Sessions Court in Crl.R.P.No.5065/2015 under section 397 8 of Cr.P.C. The petitioner herein appeared in the said revision petition and opposed the petition. The learned Sessions Judge after hearing both the sides, allowed the said revision petition by the impugned order, subject to payment of cost of one thousand rupees and dismissal of C.C.No.1458/2013 by the trial Court was set aside and the criminal case was restored for disposal, in accordance with law.
11. The only point required to be considered in the present case is, as to whether dismissal of the complaint under section 256 of Cr.P.C. for non prosecution is revisible or an appeal lies under section 378(4) of Cr.P.C.
12. In Associated Cement Company Limited stated supra, the Apex Court has observed in paragraph No.9 as follows:
9. It appears th at the learned Single Judge has equated appellate 9 powers with revisional powers, and that the core diff erence between an appeal and a revision has been overlooked. It is tr ite legal position that appellate jur isd iction is coextensive with original cour t's jurisd iction as f or appr aisal and appreciation of evidence and reaching f ind ings on f acts and appellate cour t is free to reach its own conclusion on evidence untr ammelled by any f ind ing entered by the tr ial cour t. Revisional powers on the other hand belong to supervisory jurisdiction of a super ior cour t. While exercising revisional powers the cour t has to conf ine to the legality and proprie ty of the f indings and also whether the subordinate cour t has kept itself within the bounds of its jur isd iction includ ing the question whether the court has f ailed to exercise the jur isd iction vested in it. Though the diff erence between the two jurisdictions is subtle, it is quite real and has now become well recognised in legal provinces.
13. Again in paragraph No.13 it is held as follows:
13. When a tr ial cour t had acquitted an accused due to non-
appear ance of the complainan t the appellate cour t has the same powers as the tr ial cour t to reach a f resh decision as to whe ther in the par ticular situ ation the Magistr ate should have acquitted the 10 accused. What the tr ial cour t did not then ascer tain and consider could, perhaps, be known to the appellate cour t and a decision diff erent f rom the tr ial cour t can be taken by the appellate cour t, whether the order of acquittal should have been passed in the par ticular situation.
14. In that case the complaint was dismissed for non prosecution, against which a criminal appeal was filed before the High Court, which was dismissed by the High Court and the Hon'ble Apex Court, under such circumstances, held that the High Court has equated the appellate powers with revisional powers and that the core difference between the appeal and revision has been overlooked. It is further held that it is trite legal position that the appellate jurisdiction is co-extensive with original findings of facts and appellate Court is free to reach its own conclusion from evidence. Revisional powers, on the other hand, belong to supervisory jurisdiction of a superior Court. While exercising 11 revisional powers, the Court has to confine to the legality and propriety of the findings recorded by the trial Court.
15. The Hon'ble Apex Court in paragraph No.27 of the said judgment has held as follows:
27. However, as we have taken the vie w that the Magistr ate should not have acquitted the respondent under Section 247 of the old Code on the f acts of this case we allow the appeal and set aside the order of acquittal as well as the impugned judgment of the High Cour t.
The prosecution would now proceed f rom the stage where it reached bef ore the order of acquittal was passed.
16. Therefore the Hon'ble Apex Court held in the said case that though the appeal was properly filed before the High Court, against the impugned order passed under section 247 of Cr.P.C., the appeal was dismissed and therefore it has to be held that the appeal lies under section 378(4) of Cr.P.C. before the High Court against the order passed under section 256 of Cr.P.C., 12 dismissing the complaint for non prosecution and the revision lies under section 397 of Cr.P.C.
17. This would be clear from the judgment in the case of V.K.Bhat, stated supra, wherein the Hon'ble Apex Court considered the question as to whether in such a case where the complaint was dismissed tentamounts to acquittal of the accused and in such case whether the revision lies under section 397(3) of Cr.P.C. or appeal lies and in case no appeal is brought, no revision shall be entertained in view of section 397 of Cr.P.C. The Apex Court in paragraph No.8 of the judgment has held as follows:
8. Af ter hear ing the learned counsel f or the par ties, we f ind that there is some f orce in the submissions made by learned counsel appearing f or the appellan t and we hold, in the f acts of the case, that d ismissal of the complaint for non-appear ance of the complainant amounts to acquittal as contemplated in Section 256 of the Code of Criminal Procedure.13
18. Therefore it is crystal clear that when a complaint is dismissed for non appearance of the complainant or non prosecution, it amounts to acquittal of the accused under section 256 of Cr.P.C. and that the said order is not revisible.
19. In Kalpana Tyagi stated supra, the Hon'ble Delhi High Court referred to the case in Associated Cement Company Limited stated supra and other cases, in paragraph No.4 it is held as follows:
4. Bef ore adver ting to the question as to whether the complain ts dismissed in def ault should be restored or not, this Cour t has been called upon to decide as to whe ther the revisions f iled by the petitioner bef ore the learned ASJ were main tainable as Section 256 of the Code specif ically says that in respect of trial of a summons case by a Magistrate, if the complainan t does not appear on the date appoin ted for the appear ance of the accused or any day subsequent thereto to which the hearing may be adjourned, the Magistr ate shall notwith stand ing anything hereinbef ore contained, acquit the accused, unless f or some reason he thinks it proper to adjourn the hear ing of 14 the case to some other d ay. It is submitted that Section 256 of the Code does not make it obligatory upon a Magistr ate to dismiss a complain t on account of absence of the complainan t but once he choses to d ismiss the complaint the consequences as detailed in Section 256 of the Code f ollow and the accused gets acquitted. Learned counsel for the respondent argues that in view of dismissal of the complaints f iled by the petitioner under Section 256 of the Code the Revisions bef ore the learned ASJ were not even main tainable as only appeals could be f iled in terms of Section 378 of the Code. It is contended that since the revisions f iled by the petitioners were not main tainable, this Cour t cannot be called upon to invoke its inherent po wers under Section 482 of the code to se t asid e the orders passed by learned ASJ or the orders of dismissal of complaints f iled by the learned Metropolitan Magistr ate.
20. Similarly this Court in Crl.P.No.10002/2012 decided on 3.12.2013 has held in paragraphs No.5 and 7 as follows:
5. The petitioner pref erred revision bef ore the learned Sessions Judge in Crl.R.P.No.101/2011. The learned Judge of the revisional Cour t considering the dispu ted f acts opined the order of Magistr ate is passed under Section 256 15 of the Cr.P.C. and thus revision was not main tainable. The petitioner to seek remedy of appeal. Despite such clar ity in the order of the learned Sessions Judge, the petitioner did not pref er any appeal as is permissible under law, but f iled petition under Section 482 of the Cr.P.C.
7. Such a submission is undoubtedly ignoring the phraseology of Section 256 of the Cr.P.C., which adumbr ates when summon issued to secure the presence of the accused and if the complainant absents or complainan t d ies, the complain t shall be dismissed. In such an eventuality, it shall be acquittal of the accused.
Theref ore, by f riction of law when the complaint is dismissed for non-
prosecution or other circumstances enumer ated under Section 256, it amounts to acquittal. Once it is acquittal, the remedy is by way of appeal. I f ind no error in the judgment of the revisional cour t.
21. This Court in Crl.P.No.2424/2014 decided on 13.7.2015 has held in paragraph No.4 and 6 as follows:
4. In the af oresaid case also, a complaint f iled under Section 138 of N.I.Act having been dismissed for non-
prosecution, Cr iminal Revision Petition was f iled and the Sessions Judge having 16 held the revision petition as not main tainable and rejected the same with an observation th at it is open to the complainan t to seek remedy by way of an appeal, this Cour t was approached under Section 482 Cr.P.C. The aforesaid order squarely applies to the present case.
6. Crl.R.P.No.45/2013 being not main tainable as against the order dated 15.11.2012 passed by the Additional Chief Metropolitan Magistr ate in C.C.No.26549/2011, stands rejected, with liber ty being reserved to the petitioner to avail remedy of appeal, as held in the case of M.J. Ravindr a Reddy (supr a). The appeal, if f iled, shall be decided, uninf luenced by any f inding or observation made in the order passed in Crl.R.P.No.45/2013.
22. Therefore this Court has consistently held that where the complaint was dismissed for non prosecution, appeal lies to the High Court under section 378(4) of Cr.P.C. and not a revision under section 397 of Cr.P.C. However this Court in Crl.P.No.3918/2015 decided on 26.8.2015, was not inclined to interfere with the order passed under section 397 of Cr.P.C. by the revisional 17 Court, in restoring the complaint dismissed for default.
23. This Court in Crl.P.No.102192/2018, decided on 6.2.2019, did not interfere with the order passed by the revisional Court in restoring the complaint, which was dismissed for non prosecution. However in view of the judgment of the Hon'ble Apex Court in V.K.Bhat's case stated supra and also in the case of Associated Cement Company Limited stated supra, this Court holds that the revision petition filed by the respondent before the learned Sessions Judge was not maintainable and that the order of dismissal of the complaint for non prosecution ought to have been challenged before the High Court in an appeal under section 378(4) of Cr.P.C. Therefore the learned Sessions Judge ought not to have entertained the criminal revision petition and ought not to have allowed the same. Therefore the 18 impugned order passed by the revisional Court in allowing the Crl.R.P.No.5065/2015 dated 24.8.2016 is liable to be quashed/set aside.
24. However the respondent has to be given a liberty to approach the High Court under section 378(4) of Cr.P.C. by way of appeal as permitted by the Hon'ble Apex Court in V.K.Bhat's case. Accordingly this Court proceed to pass the following:
ORDER The criminal petition filed under section 482 of Cr.P.C. is allowed.
The order dated 24.8.2016, passed in Crl.R.P.No.5065/2015 is hereby quashed/set aside. However the respondent complainant is at liberty to take such steps as may be advised, in accordance with the provisions available in law and to proceed with the matter before the 19 appropriate forum, within a period of four weeks from the date of receipt of a copy of this order.
Sd/-
JUDGE Mrk/-