Bangalore District Court
Manjunath S/O Late Devaraj vs Saibaba Enterprises on 2 January, 2020
IN THE COURT OF THE LX ADDITIONAL CITY CIVIL
& SESSIONS JUDGE, BENGALURU
(CCH-61)
Dated this the 2nd day of January, 2020
:Present:
Sri Vidyadhar Shirahatti, LL.M.
LX Addl. City Civil & Sessions Judge,
Bengaluru.
Crl. Appeal. No. 865/2016
Appellant :- Manjunath S/o Late Devaraj, Aged
about 30 years, R/at No.95/1,
Konappana Agrahara Village,
Electronic City Post, Begur Hobli,
Anekal Taluk, Bengaluru.
(Sri S.M.Somashekar, Adv)
Vs
Respondent:- Saibaba Enterprises, No.335, 27th
Main, 2nd Sector, HSR layout,
Bengaluru.
Reptd by its proprietor Sri.Eranna, S/o
Shivanna,
ORDER ON I.A.I
This application is filed u/Sec.5 of Limitation Act
by the Appellant who is accused in
2 Crl.A.No.865/2016
C.C.No.24769/2016 on the file of XX ACMM,
Bengaluru, to condone the delay in filing of this appeal.
2. The appellant has filed this appeal
challenging the impugned judgment dt:2/5/2016 in
C.C.No.24769/2016 on the file of XX ACMM,
Bengaluru wherein she has been convicted for the
offence punishable u/Sec.138 of N.I.Act and sentenced
her to pay fine of Rs.8,34,500/- from the date of
impugned judgment and default of payment of fine
amount she shall undergo SI for three months.
Besides, the trial Court awarded compensation of
Rs.8,24,500/- out of the fine amount to the
complainant acting u/s.357 of Cr.P.C., and hence, he
preferred this appeal on various grounds and praying
to set aside order of conviction and sentence and the
fine imposed on him. However, he has not preferred
this appeal in time. Hence, he prays to condone the
delay in filing of this appeal.
3 Crl.A.No.865/2016
3. In the affidavit filed in support of I.A.No.1,
appellant has sworn that, he contended that on
25/7/2016 the trial court was issued bailable warrant
and thereafter without execution of bailable warrant,
NBW was ordered and without executing said NBW,
matter was posted for evidence and evidence of the
complainant was recorded exparte and exparte
judgment was pronounced, which judgment is not
sustainable. He further contended that he never
changed his place of resident at any time. On
25/7/2016, when he was at Bengaluru to attend his
mother who has been taking treatment at hospital, he
was informed by his father that some police person
from Bengaluru had been to Anekal with warrant from
Bengaluru court, on verification, he was informed that
in the present case NBW and FLW has been ordered for
the offence punishable u/Sec.138 of N.I.Act.
Immediately he approached his counsel and got
certified coy of the impugned judgment and other
4 Crl.A.No.865/2016
documents and he preferred appeal. He further
contended that, since the ex parte judgment of the case
was not within his knowledge and the proceedings were
terminated without executing NBW, thereby his case
has been prejudiced. By that time delay was caused for
the period of 89 days. The non filing of appeal well
within time is not an intentional one but due to the
aforesaid bondafide reason. If the application is not
considered and the necessary orders is not passed to
condone the delay, great injustice is caused to his and
on the other hand, if delay is condoned, no injustice
will be caused to respondents and prays to condone
the delay of 89 of days to preferring this appeal.
4. The respondent appeared through his
counsel and orally objected to this application.
5. Inspite of giving sufficient opportunity, the
learned counsel for appellant has not addressed the
arguments and hence, arguments on behalf of
5 Crl.A.No.865/2016
appellant is taken as NIL. Heard the arguments on
behalf of respondent. I have perused the records.
6. The points that arises for my consideration
is:
1) Whether the appellant has made out
ground to condone the delay of 89 days
in filing of this appeal against the
impugned judgment: dt:2/5/2016 in
C.C.No.24769/2010 on the file of XX
ACMM, Bengaluru?
2) What order?
7. My finding on the above points are as
follows:-
Point No.1) : In the Negative
Point No.2) : As per final order
For the following:
REASONS
8. Point No.1:- On perusal of entire records
filed by the appellant along with appeal memo, it
reveals that, appellant has appeared before the trial
court and contested the case.
6 Crl.A.No.865/2016
9. At the outset, this appeal is raised for
impugned judgment of conviction and sentence passed
by the learned XX ACMM, Bengaluru, dt:2/5/2016 in
C.C.No.24769/2010.
10. Inspite of giving sufficient opportunity, the
learned counsel for the appellant has not appear and
addressed the arguments. Hence, argument is taken
as NIL. The learned counsel for the appellant
submitted in I.A that, appellant is not having
knowledge about the impugned judgment of conviction
and on 25/7/2016 the trial court was issued bailable
warrant and thereafter without execution of bailable
warrant, NBW was ordered and without executing said
NBW, matter was posted for evidence and evidence of
the complainant was recorded exparte and exparte
judgment was pronounced, which judgment is not
sustainable. He further contended that he never
changed his place of resident at any time. On
7 Crl.A.No.865/2016
25/7/2016, when he was at Bengaluru to attend his
mother who has been taking treatment at hospital, he
was informed by his father that some police person
from Bengaluru had been to Anekal with warrant from
Bengaluru court, on verification, he was informed that
in the present case NBW and FLW has been ordered
for the offence punishable u/Sec.138 of N.I.Act and
hence, 89 days delay in preferring this appeal. Hence,
he prays to condone the delay.
11. On considering the entire arguments and
I.A.No.I with affidavit filed in support of I.A and case
records at the cost of repetition, it is inevitable to hold
that, the appellant slept over his right and not filed
appeal with in the law of limitation nor showed any
bonafide reason for causing 89 days delay in filing the
appeal and same is unexplained and also not made
out any grounds to condone the delay and not showed
any arguable case on merits of the appeal and that
8 Crl.A.No.865/2016
part the appellant in his affidavit contended that, he is
on 25/7/2016, the trial court was issued bailable
warrant and thereafter without execution of bailable
warrant, NBW was ordered and without executing said
NBW, matter was posted for evidence and evidence of
the complainant was recorded exparte and exparte
judgment was pronounced, which judgment is not
sustainable. He further contended that he never
changed his place of resident at any time. On
25/7/2016, when I was at Bengaluru to attend his
mother who has been taking treatment at hospital, he
was informed by his father that some police person
from Bengaluru had been to Anekal with warrant from
Bengaluru court, on verification, he was informed that
in the present case NBW and FLW has been ordered
for the offence punishable u/Sec.138 of N.I.Act. and
to support his contention, he has not produced any
medical documents. Further I repeat that, even before
this court, the appellant and his counsel remained
9 Crl.A.No.865/2016
absent and not contested the case. That apart, the
appellant and his counsel since from the date of filing
of appeal have not appeared before this court to
address the arguments. This act of the appellant goes
to show that, he is diligent in proceeding with the case.
Hence, the appellant has also failed to prove the point
raised for consideration. Accordingly, I answer the
point in Negative.
12. Point No.2: In view of my findings on Point
No.1, I proceed to pass the following;
ORDER
The I.A.No.I filed u/Sec.5 of Limitation Act is hereby dismissed. Consequently, the appeal does not survive for consideration, as barred by law of limitation. Accordingly, appeal is dismissed.
10 Crl.A.No.865/2016Office is directed to send the copy of this order to learned XX ACMM, Bengaluru forthwith.
*** (Directly dictated to the Stenographer on computer, after corrections, pronounced by me in the Open Court on this the 2nd day of January, 2020) (Vidyadhar Shirahatti) LX Addl.City Civil & Sessions Judge, Bengaluru 11 Crl.A.No.865/2016 ORDER PRONOUNCED IN THE OPEN COURT. VIDE SEPARATELY ORDER The I.A.No.I filed u/Sec.5 of Limitation Act is hereby dismissed. Consequently, the appeal does not survive for consideration, as barred by law of limitation. Accordingly, appeal is dismissed.
Office is directed to send the copy of this order to learned XX ACMM, Bengaluru forthwith.
(Vidyadhar Shirahatti) LX Addl.City Civil & Sessions Judge, Bengaluru 12 Crl.A.No.865/2016 ORDER PRONOUNCED IN THE OPEN COURT. VIDE SEPARATELY ORDER The I.A.No.I filed u/Sec.5 of Limitation Act is hereby dismissed. Consequently, the appeal does not survive for consideration, as barred by law of limitation. Accordingly, appeal is dismissed.
Office is directed to send the copy of this order to learned XX ACMM, Bengaluru forthwith.
(Vidyadhar Shirahatti) LX Addl.City Civil & Sessions Judge, Bengaluru