Karnataka High Court
Mrs. Shaila P. Prabu W/O. M.P. Prabhu vs Nagendra K. Mallya S/Of K.N. Mallya ... on 31 August, 2007
Author: K. Ramanna
Bench: K. Ramanna
ORDER K. Ramanna, J.
Page 1941
1. Though the matter is listed for admission, with the consent of learned Counsel for both sides, the same is taken up for final hearing and, is being disposed off by this order.
2. This revision petition in filed by the petitioner under Section 397 Cr.P.C. praying that this Court be pleased to set aside the order dated 1.8.2007 passed by the XIX ACMM, Bangalore in C.C. No. 15062/2003 by issuing FLW and NBW against the petitioner.
3. The case of the petitioner, in brief, is as follows. The petitioner being an accused before the trial court challenged the order of conviction and sentence passed by the trail court in C.C. No. 15062/03, dated 1.8.07 which has been affirmed by the learned Sessions Judge in Criminal Appeal No. 1407/05. Being aggrieved by the orders passed by the courts-below, the petitioner preferred Criminal Revision Petition No. 1713/2006. Initially this Court granted interim stay and admitted the matter. Since the petitioner has not complied the order passed in Crl.R.P. No. 1713/2006, interim order came to be recalled. When the matter stood thus, the respondent herein filed an application before the trial Court to execute the order of conviction and sentence and NBW as well as FLW were issued against the petitioner. Therefore, the petitioner has come up with this revision petition filed under Section 397 Cr.P.C.
4. It is argued by the learned Advocate for the petitioner that under Section 357 Cr.P.C. when an appeal or revision is admitted, the trial Court in barred from executing the order of sentence passed by it. Therefore, issuance of NBW and FLW against the petitioner is in violation of the provisions of Section 357(2) Cr.P.C. Therefore, the said order of issuance of FLW and NBW are to he set aside unless this Court disposes off the revision petition. The trial Court cannot open a dummy order sheet when the LCR has been already submitted and received by this Court. It is in violation of the provisions and also violation of the liberty of the citizens. Further it is argued that the revision petition is maintainable since the court has passed the order after admitting the revision petition. Therefore, the revision is maintainable and this Court may dispose of this revision petition as well as Criminal Revision Petition No. 1713/2006 filed by the petitioner. In support of his contention, learned Counsel for the revision petitioner rail ad on the following decisions:
a) (Kashmira Singh v. The State of Punjab), paragraph 2 reads as follows:
We have admitted the appeal because we think you have a prima facie case, but unfortunately we have no time to hear your appeal for quite a few years and, therefore, until we hear your appeal, you must remain in jail, even though you may be innocent?
Page 1942
b) 2007 CRL.L.J. 2417 (Dilip S. Dahanukar v. Kotak Mahindra Co. Ltd. Anr.) wherein it has been held as follows:
An appeal is indisputably a statutory right and an offender who has been convicted is entitled to avail the right of appeal which is provided for under Section 374 of the Code. Right of Appeal from a judgment of conviction affecting the liberty of a person keeping in view the expansive definition of Article 21 is also a Fundamental Right. Right of Appeal, thus, can neither be interfered with or impaired, nor it can be subjected to any condition.
c) 2000 SCC (CRL) 1380 (Bihari Prasad Singh v. State of Bihar and Anr.) wherein it has been held as follows:
High court's powers of revision-Held, do not include the authority to refuse to hear or entertain a matter on the ground that accused had not surrendered-There is no such requirement under Criminal Procedure code- High Court was not justified in dismissing the application for revision on the sole ground that accused had not surrendered.
d) (Garikapati Veeraya v. N. Subbiah Choudhry and Ors.) wherein it has been held as follows:
The right of appeal in not a mere matter of procedure but is a substantive right.
Therefore, when the petitioner has got a right to prefer revision against the order of conviction and sentence passed by the trial Court and affirmed by the learned sessions Judge and this Court has admitted the same, interim order granted is recalled for non-compliance, until the earlier revision petition is disposed off, the trial court has no right to open a dummy order sheet and issue FLW against him. Hence, he prays for staying the operation and execution of the order under challenge.
5. As against this, learned Counsel for the respondent submitted that first of all the revision petition is not at all maintainable. The trial court and the learned sessions Judge have also recorded concurrent findings that he was guilty of the offence punishable under Section 138 N.I. Act against which the petitioner has preferred SLP No. 1353/06 against the judgment and order dated 23.12.05 in Crl.P.No. 1353/06 passed by this Court. While dismissing the SLP, four weeks time was granted for the petitioner to deposit the amount but the petitioner has not deposited the same and he has violated the order passed by the Hon'ble supreme Court. Than he filed the revision. Since he has not complied the order passed by this Court, this Court has rightly recalled the order and after recalling the order only, the respondent executed the order of conviction and sentence passed by the Courts-below and there is nothing wrong in Page 1943 issuance of FLW and NBW against the petition. The present revision petition is not at all maintainable when the earlier CRl.R.P. 1713/07 is still pending. Further learned Counsel has relied upon a decision wherein Hon'ble Apex Court has observed that:
It is the order of sentence or an order capable of execution under the Code. It is the order of sentence or an order awarding compensation or imposing fine or release on probation which are capable of execution and which, if not suspended, would be required to be executed by the authorities. Since the order if conviction does not on the mere filing of an appeal disappear it is difficult to accept the submission that Section 267 of the Companies Act must be read to apply only to a 'final' order of conviction. Such an interpretation may defeat the very object and purpose for which it came to be enacted.
Therefore, it is submitted that this Court has already recalled the interim order of stay. The respondent-complainant is entitled to execute the orders and the trial court is right in issuing FLW. Therefore, the provisions of Section 357(2) Cr.P.C. is not at all applicable in view of the decision, rendered by the Supreme Court referred to above. He has relied on a decision rendered by the Apex court in the case of Mulraj v. Murti Raghunathji Maharaj , paragraph 8 which reads as follows:
But a mere order of stay of execution does not take away the jurisdiction of the court. All that it does is to prohibit the court from proceeding with the execution further, and the court unless it knows of the order cannot be expected to carry it out.
...
It is clear that as soon as a stay order is withdrawn, the executing court is entitled to carry on execution and there is no question of fresh conferment of jurisdiction by the fact that the stay order has been withdrawn Therefore, it is submitted that since this Court has already recalled the interim order, the trial court is right in issuing FLW and NBW. Therefore, it is submitted that the provisions of Section 357 Cr.P.C. is not at all applicable. There is no infringement of any fundamental right of a citizen by curtailing the freedom of liberty. Therefore, the revision petition deserves to be dismissed.
6. I have carefully examined, the materials placed on record. The point that arises for consideration and determination is, whether the order under revision calls for interference?
7. It is an admitted fact that the petitioner herein was an accused before the trial Court for an offence punishable under Section 138 of N.I. Act and the trial Court has convicted the petitioner for balancing of cheque and the appeal came to be dismissed and the revision preferred by the petitioner in this Court in the earlier revision petition was also dismissed which has been challenged before the Supreme Court. While Page 1944 dismissing the SLP, the petitioner was directed to deposit the amount within four weeks but in spite of such a direction he has not complied the order of the Apex Court which shows that he has no regards for the orders passed by the Apex Court. He has filed a revision in the year 2006 challenging the order passed by the Courts-below. Of course, this Court has granted ex-parte interim order with certain conditions. Since he has not complied the orders, this Court has recalled the order. When entire records were called for by this Court, it is the duty of the Courts-below to submit the records. The respondent being the complainant he is entitled to execute the order passed by the trial court which has been affirmed by the learned Sessions Judge in the appeal. The decisions relied upon by the learned Counsel for petitioner are not applicable to the facts of the case on hand. In view of the law laid down by the Apex Court, the trial Court is entitled to open a dummy order sheet and hence rightly issued NBW and FLW for recovery of the amount. Therefore, the present revision petition is not at all maintainable as these is no incorrect or illegal findings in issuing NBW and FLW and the petition is liable to be dismissed.
8. For the foregoing reasons, criminal revision petition is dismissed.