Karnataka High Court
B R Sheshadri vs Veerashaiva Sahakari Bank Ltd on 11 July, 2011
Author: V.Jagannathan
Bench: V.Jagannathan
IN THE HIGH COURT OF KARNATAKA AT BANGALORE Dated the 11" day of July 2011 >-BEFORE: HON'BLE MR.JUSTICE : V. JAGANNATHAN CRIMINAL REVISION PETITION No. 11s 2014 BETWEEN : B.R.Sheshadri, S/o late B.Ramalinga Iyen nia on Aged about 68 years, os ". R/a Flat No.3Ol, 11 Main, .1.3*. Cross, Malleshwara, Bangalore - 560 603, Now r/at A-27 _ Jayanthi Apa wrtments,- 13 Cross, Malleshwar a, Bang: alore- 560 903. .. Petitioner ( By Sri Padm anabha } Ma shale, Senior Counsel, for _ Sri M.Jaipr akashi Reddy , Advocate. } AN D.: Vv eerash: aiva Sahak: ari Bank Ltd. rept. 'by its General Manager, Srr Parameshw ariah, - S/o D: Ss. Chandrashekaraiah, "No, J 732 /. 22, M.C.Layout, M.C.Road, Vi ijayane gare. Bangalaore -- 560 040. ..Respondent ( By Sri C.H.Jadhav, Advocate, for M/s Bannur Assts. )} Criminal Revision Petition filed under Section 397 A r/w 401 of the Cr.P.C. praying to set aside the impugned order dated 1.12.2010 passed by the P.O., FTC-XVI, Bangalore City, in Crl.R.P.No. 21/2010 and order dated 21.4.2006 passed by the V Addl.©€.M.M.., Bangalore City, in C.C.No. 12995/2003 This petition coming on tor hearing this day, the -- court ™ace the following : ORDER
This Criminal Revision. Petition is'-filed® by A-10 being aggrieved by the' revisior nal. court allowing the iled by the fespondent herein and setting aside pit rome the order-of the' trial cor ar, which had passed the order of discha ige in favour-of-the present petitioner.
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2. Bri ef f facts necessary for the purpose of this $eder are that, the petitioner herein, who has been arraigned as AIO, filed an application under Section 239 of the . cree discharge from the case. which is register ed ag ainst ten persons for the offence punishable under Section 420 read with 34 of the I.P.C.
3. The case of the prosecution in short was that the complainant-Bank deposited Rs.50.00,000/- with A-1 aboot Bank and. in turn, A-1 Bank had issued Fixed Deposit Receipts in favour of the complainant-Bank. However, A-1 Bank failed to repay the amount, - to, the complainant-Bank and, therefore, the compiainaist Bank filed a private complaint which ultimately led to a case being referred to investig ation and 'ting of 'the charge sheet against ten "accused | persotis "for the' aforementioned offences.
4, The trial court alowed the 'applic sation filed by the petitioner. ond Be was . dischet, sed. "The said order was passed.on 2 14.2008. 3. t he com plainant- Bank thereafter cha allenged - the! order of discharge before the revisional court seni em Petition No.21/2010 and as there, was some delay in filing the said petition, I.A. was "als 80 filed to ) condone the delay in preferring the revision B petition. > The learned judge of the revisional court allowed the 1.A. filed for condonation of delay as well as the revision petition filed and set aside the order of the 'trial court and directed the trial court to proceed to frame the charge against the accused persons.
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5. Learned senior counsel Shri Padmanabha Mahale for the petitioner, referring to the material on record, contended that the petitioner had no role to. play, in 'the, entire complaint allegations excepting "that . this Bo petitioner received the cheque. for. Rs.50,00,000/ - On wong poms behalf of A-1 Bank and gave-the cheque te"A-1, Banx. A-1 Bank had not repaid, the amount: to the complainant-Bank, the' petitioner, therefore, cannot be held responsible and moreover, the 'petitioner is also unaware of. the: actual things, which turned out subsequen nily. "he trial court rightly took note of the material placed: and. the petitioner was discharged. The revisionar court, therefore. committed an error in setting asice the order of the trial court.
" 6. eines in the order of the revisional court is that, the co | ut took note of the recent amendment to
- Section 372 of the Cr.P.C. and has opined that the "benefit given to the complainant under the amended "provision to Section 372 of the Cr.P.C. can be extended even to the complainant in the instant case. The said view of the court below is also contrary to the provision contained in Section 372 of the Cr.P.C. and moreover, 4 even prior to the amendment, no right of revision was ree available to the complainant. herefore, the impugned. order of the revisional court requires 'to be. set aside. Reliance is placed to support the aforesaid, submissions on the decisions reported i AIR 1904 - SC, 960 and (1996)9 SCC 766.
7. As far " the challenge to the order passed in condoning. "the "delay by. «the - revisional court is concerned th aubsile Sioh 4 mace is that, the said order of the revisioriol court' is* not being challenged and consequently, "the grounds urged against the order coridoning the delay are not pressed but, only on the cmerits "af the order passed, the revision petition is
-8. On the other hand, the submission of learned
-counsel Shri C.HJadhav for the respondent- complainant is that, the revisional court committed no revision and the proviso to wt
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a) 4 Section 372 of the Cr.P.C. has no application to the instant case and where the court below has overlooked the material evidence, the High Court has got the pO! Wer fo exercise its revisional jurisdiction even at the 'natatiee e-
of a private complainant. ee
9. s far as the merits of. the « ca se-are concerned, the submission made is that, "the revision court has considered the entire' char rge shee et "material and has opined after going through Exs.P-4 anid P-5 that this petitioner also: iad a rele top pay. in the matter of the complainait-Benk "being : "forced to deposit Rs.50,00,000/--with A Nank. In this connection, the learned "counsel 'took | 'me through the charge sheet _ meter and a contended that Bank also did not documents and the documents which 5S ptoduced are all found to be fake documents. Therefore, the revisional court rightly allowed the revision petition filed by the complainant and set aside the order of discharge passed by the trial court.
10. Having thus heard both sides, the first point to be considered is whether the Criminal Revision Petition is maintainable or not in the light of the provisions contained in Section 372 of the Cr.P.C.
11. Section 372 of the CrPC. provides, for right, of appeal to the victim and this provision is inserted py way of Amendment Act 5 of 2008 we! 31.12.2009 and the said proviso will hat e to be read along with the main provision contained i Section 372 which states that no appeal shall lie trom any jud gment oF order of a criminal court €X. sept adsprovided for this Code or by any other law for the time. being in force. It is, therefore, clear from a combined redding of the main provision as well as the proviso subsequently added that it is only where . no. appeal lies that a provision has been made for the victim to have right to prefer an appeal against any order , passed by the court putting the accused or SS corrvicting for lesser offence or imposing inadequate compensation. Whereas, in the case on hand, it is the revision petition that is filed by the complainant before the revisional court and in the decision viz., Sheetala Prasad Vs. Srilkant, reported in (2010)2 SCC 190, the Apex Court has observed that, without making "the categories exhaustive, revisional jurisdiction, can. "pe> exercised by the High Court at.the instance complainant under the cire 7 umstanc es ~ which' are mentioned at paragraph- 12 on the j u idgment and out of the five circumstances, ofie "is "where the material evidence has been overlooked either by the trial court or kon the appellate court or the order is passed by considering irrelevar nt evidie ne
12. 'Incanother. deci isi ion re pol rted in 2004 Cri.L.J. 316, aad 1D, @ an it has been held that, wh where an accused is dischar;:
arid the State | 3ad not filed any revision against the said . order . and where a_ petition is filed by private "eoin plainani, the court cannot refrain from doing its duty a ip id abstain from interfering on the ground that the complaina int and not the State has invoked the 'revisional jurisdiction.
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13. In the case of Municipal Corporation of Delhi Vs. Girdharilal Sapuru, reported in AIR 1981 SC 1169, the cS Apex Court has held that the High Cot ro. should exercise suo motu power of revision and" should . rot:
allow to perpetuate the illegality and misc carriage 'of justice and the revision could liot 'bé dismissed by. te High Court on the technicai-ground of limitation."
14. In the light of the aforesaid 'dee ision 5 whi ch have been referred to by learned counsel fot *ne respondent Shri C.HJadtiav: th : contentions put forward by learned. senior counsel "Shri Pa dmanabha Mahale that the revisi io on. petition cout not have been maintained by the private complainant: will have to be rejected.
os 15. As jar as the discharge order is concerned, as has " been rightly-cl 5 pserved by the Apex Court in the case of Satish' "Mehra Vs. Delhi Administration, reported in
- (1996)9 SCC 766, "the object of providing such an | opportunity as is envisaged in Section 227 of the Code is to enable the court to decide whether it is necessary to proceed to conduct the trial". The court also referred to Section 239 of the Cr.P.C. and observed at paragraph-13 that, if the accused succeeds in producing any reliable material at that stage which might, 'fatally affect even the very sustainability of the ne oa ne into by the court at that stage. . oreo the: net be any valid ground includi ink insuifcien cy vl evidence' to prove the charge.
16. In the case on rar. the e learried trial judge has proceeded. & x 58 the: - order of "discharge by mainly looking to une Ce ontents of ; she privat complaint. On the other hand, the eared judge of the revisional court has also looked into the ena rge sheet material and has made particular reférence to Ex.P-4, a letter written to A-1 Bank: by | the, _complainant-Bank and the said letter oe eonitainedtHie signature of this petitioner, who is A-10. and: this petitioner had acknowledged the receipt of cheque for Rs.50,00,000/-. The court also took note of one more document Ex.P-5, which is the letter addressed to the complainant-Bank by this tioner.
It is on the basis of the aforesaid material forming part of the charge sheet that the learned judge of the revisional court opined that there is sufficient: inate ta to proceed against this petitioner also.
17. In my opinion, as the trial court failed.to. take nate of the charge sheet material and pr oceeded to discharge © the accused- petitioner herein "ony on 'the basis of the BOP Bran complaint allegations' an nid whebeas the revisional court did go through the eritire charge sheet material and made re ferer: Ice: 'to: several doviamer nts which, according to the revistana court: dicated that this petitioner also had a 'fole © to" play inasmuch as there was acknowledgement. of the amount of Rs.50,00,000/- by an this petitioner™a : apart from he also making a written "correspondence with the complainant-Bank.
18>. As, at the stage of framing of the charge, the court s.not expected to go deep as if to evaluate the evidence, yet. if there is prima facie material to show the "involvement of this petitioner. in such circumstances, the revisional court cannot be held to be at fault.
19. For the aforesaid reasons, the decision referred to by the learned senior counsel for the petitioner' ie., A.LR. 1994 SC 960, is not applicable to the facts and circumstances of the present case and, therefore, the.
order of the revisional court in allowin g the revision filed by the respondent-complainant 'cannot be. mteriered :
with. Since the revision petitioner is 'jnot pr essing the order passed on the TA. ; to. condone, the delay, the present petition, therefore. is liable to. be rejected and it is rejected. .. . : a | The trial court shiall proceed with the case without being influenceé by any. of the observations made herein above.
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