Allowed

M/S.Amlagiris v. M/S.Mspl Limited

Karnataka HC22 Apr 2014CRL.P/100467/2014

Case brief

AI extract

What is this about?

The High Court allowed criminal petitions filed under Section 482 Cr.P.C., holding that a Sessions Court dismissal of a Section 391 application was erroneous. The Court mandated restoration of the application for fresh consideration on merits alongside the appeal, directing the Sessions Judge to expedite disposal within six months.

What did the court decide?

The application under Section 391 Cr.P.C. was restored to the Sessions Court to be heard afresh along with the appeal on merits, with a direction to expedite within six months.

M/S.Amlagiris Vs M/S.Mspl Limited — Civil Procedure and Limitation | Karnataka HC (2014)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 22^ND DAY OF APRIL, 2014

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BEFORE

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THE HONOURABLE MR. JUSTICE K.N. PHANEENDRA

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CRIMINAL PETITION NO. 100467/2014

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C/W

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CRIMINAL PETITION NO. 100468/2014

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CRL.P. NO.100467/2014

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BETWEEN

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M/S.AMLAGIRIS 2ND FLOOR, 14/15, ALFAN PLAZA, M.G.ROAD, PANJIM, GOA-403001

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PHILIP J S/O JACOB AGED ABOUT 39 YEARS, R/AT: 14/15, 2ND FLOOR, ALFAN PLAZA, M.G.ROAD, PANJIM, GOA-403001

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TEENU W/O PHILIP J R/AT: 14/15, 2ND FLOOR, ALFAN PLAZA, M.G.ROAD, PANJIM, GOA-403001

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... PETITIONERS

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(BY SRI. SIJI MALAYIL, ADV.)

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AND

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M/S.MSPL LIMITED BLDOTA ENCLAVE, ABHERAJ BALDOTA ROAD, HOSPET-583203, BELLARY DISTRICT, KARNATAKA ... RESPONDENT

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(BY SRI.A.G. WAJPE, ADV FOR SRI.G.K.HIREGOUDAR, ADV.)

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THIS CRIMINAL PETITION IS FILED U/S 482 OF CR.P.C. SEEKING THAT THE PETITIONER BE ALLOWED TO LEAD FURTHER EVIDENCE U/S 391 OF CR.P.C. BY SETTING ASIDE THE IMPUGNED ORDER DATED 11.02.2014 PASSED BY THE III-ADDL. & SESSIONS COURT, BELLARY, SITTING AT HOSPET, IN CRL.A.NO.25/2013.

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CRL.P.NO.100468/2014

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BETWEEN

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M/S.AMLAGIRIS 2ND FLOOR, 14/15, ALFAN PLAZA, M.G.ROAD, PANJIM, GOA-403001

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PHILIP J S/O JACOB AGED ABOUT 39 YEARS, R/AT: 14/15, 2ND FLOOR, ALFAN PLAZA, M.G.ROAD, PANJIM, GOA-403001

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TEENU W/O PHILIP J R/AT: 14/15, 2ND FLOOR, ALFAN PLAZA, M.G.ROAD, PANJIM, GOA-403001 ... PETITIONERS

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(BY SRI. SIJI MALAYIL, ADV.)

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AND

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M/S.MSPL LIMITED BLDOTA ENCLAVE, ABHERAJ BALDOTA ROAD, HOSPET-583203, BELLARY DISTRICT, KARNATAKA ... RESPONDENT

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(BY SRI.A.G. WAJPE, ADV FOR SRI.G.K.HIREGOUDAR, ADV.)

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THESE PETITIONS COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:

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O R D E R

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Heard the learned counsel for the petitioner and the learned High Court Government Pleader for respondent –

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State. Perused the records.

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Crl.P.No.100468/2014 is preferred by the petitioner challenging the order passed by the III Additional Sessions Judge, Bellary sitting at Hospet in

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Crl.A.25/2013 on I.A.2 filed under Section 391 of Cr.P.C. by the appellants therein. The said application is filed under Section 391 of Cr.P.C. before the appellate Court seeking permission to lead additional evidence by producing additional documents. The application discloses that subsequent to passing of the judgment by the trial Court, the appellant found some documents, which is styled as ‘Purchase order” dated 19.06.2010. It is alleged that respondent company issued the said purchase order for supply of 65,000 MT of Iron Ore by vessel MN NAIAS under clause 16 of the Purchase order, categorically it is stated that the appellant had issued a cheque, bearing No.463398 of the Corporation Bank for a sum of Rs.5,22,00,000/- in favour of MSPL Ltd. for security. The respondent was presented the said cheque, which came to be bounced and therefore, the respondent filed a private complaint. Therefore, it is contended that the said document is necessary for

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adjudication of the rights of the parties. The objection

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filed by the respondent discloses that they have denied the said document.

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After hearing the arguments, learned

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Sessions Judge dismissed the application on the ground

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that the petitioner herein (accused before the trial Court) has never led evidence at all before the trial Court. Therefore, leading of additional evidence either before the appellate Court or before the trial Court does not arise.

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Further it is observed by the appellate Court that, the trial Court has provided sufficient opportunity to the appellant to lead evidence, but the appellantaccused did not lead any evidence before the trial Court. On these two grounds the application came to be rejected.

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The learned Sessions judge has also extracted

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provision i.e. Section 391 of Cr.P.C. Section 391 of Cr.P.C. reads as under:

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391.Appellate Court may take further evidence or direct it to be taken-

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(1) In dealing with any appeal under this Chapter, the Appellate Court, if it thinks additional evidence to be necessary, shall record its reasons and may either take such evidence itself, or direct it to be taken by a magistrate, or when the Appellate Court is a High Court, by a Court of Session or a Magistrate.

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(2) When the additional evidence is taken by the Court of Session or the magistrate, it or he shall certify such evidence to the Appellate Court, and such Court shall thereupon proceed to dispose of the appeal.

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(3) The accused or his pleader shall have the right to be present when the additional evidence is taken.

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(4) The taking of evidence under this section shall be subject to the provisions of Chapter XXIII, as if it were an inquiry.

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(Emphasis supplied)

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This particular provision mandates that, if

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the Court feels additional evidence is necessary, then the Court shall by recording its reasons, either take such evidence itself, when the Appellate Court is a High Court, or a Court of Sessions or direct a Magistrate to record the evidence. Section 391(1) of Cr.P.C. is a provision which empowers the appellate Court to exercise discretion only when it comes to the conclusion that additional evidence is absolutely necessary for proper adjudication of the rights of the parties.

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Learned Sessions judge after perusal of

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entire materials produced before the Court and hearing the appeal on merits, Court should give finding whether additional evidence sought by the party is absolutely necessary for proper adjudication of the rights of the parties. Insofar as this aspect of this case is concerned the appellate Court has not at all given any finding. Therefore, in my opinion, I.A.No.2 filed under Section 391 of Cr.P.C. has to be restored on the file of Sessions Court with a direction to consider the said application afresh, after hearing the appeal and the application together on merits.

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So far as it relates Crl.P.No.100467/2014 is concerned, which is with reference to Crl.A.No. 24/2013 on the file of the III Additional Sessions judge, Bellari, it appears that no application has been filed under Section 391 of Cr.P.C. before the Court. No orders have

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been passed. Therefore, the petitioner does not survive for consideration.

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In view of the observation made in the body of

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this order, the Sessions judge has to consider the application filed under Section 391 of Cr.P.C. afresh in Crl.A.No.25/2013. While passing the order under Section 391 of Cr.P.C. The learned Sessions judge has to take into consideration the merits of the appeal, insofar as these two cases are concerned and pass appropriate orders.

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The Sessions Judge is hereby directed to hear the application filed under Section 391 of Cr.P.C. afresh along with the appeal on merits. If the learned Sessions judge comes to the conclusion that the proposed additional evidence is absolutely necessary for proper adjudication of the rights of the parties, then the Sessions Judge himself can record the additional

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evidence of the parties before it or if it find sufficient reasons for remanding the matter to the trial Court it can do so with a direction to the trial Court to record the Additional Evidence and after securing the additional evidence, the appeal can be disposed of on merits.

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It is brought to my notice by the learned counsel for the respondent that the Hon’ble Supreme Court has already given a direction to the Sessions Court to dispose of the matter within six months from 09.12.2013. The learned Sessions Judge has to expedite the matter and dispose of the same within the stipulated period.

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Parties are hereby directed to co-operate with the sessions Court to comply with the orders of the Supreme Court.

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With these observations, the petitions stand

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disposed of.

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Sd/JUDGE

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Rms

M/S.Amlagiris v. M/S.Mspl Limited

Case brief

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M/S.Amlagiris v. M/S.Mspl Limited

Case brief

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