Allowed

Shivayogeppa S/O. Basavanneppa Bilagi v. the Cardmom Merchants Co. Operative Bank Ltd.

Karnataka HC14 Nov 2018CRL.P/101283/2015

Case brief

AI extract

What is this about?

The High Court of Karnataka allowed a criminal petition under Section 482 Cr.P.C. to quash an order dismissing an appeal due to non-compliance. The court remanded the matter to the First Appellate Court for fresh adjudication after the petitioner deposited Rs. 4,00,000.

What did the court decide?

Petition allowed; order dated 24.03.2015 quashed; matter remanded to First Appellate Court for fresh hearing.

Shivayogeppa S/O. Basavanneppa Bilagi Vs the Cardmom… — Cheque Dishonour | Karnataka HC (2018)

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IN THE HIGH COURT OF KARNATAKA

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DHARWAD BENCH

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DATED THIS THE 14^TH DAY OF NOVEMBER 2018

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BEFORE

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THE HON’BLE MR. JUSTICE N.K.SUDHINDRARAO

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Criminal Petition No.101283/2015

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BETWEEN:

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SHIVAYOGAPPA S/O: BASAVANNEPPA BILAGI, AGE: 57 YEARS, OCC: NIL, R/O: DAVANGERE, C/O: GANGADHAR VALISHETTAR STATION ROAD, HAVERI.

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…..PETITIONER

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(BY SRI M.H.PATIL, ADVOCATE)

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AND

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THE CARDMOM MERCHANTS CO-OPERATIVE BANK LTD. REP. BY ITS MANAGER SRI SHIVABASAPPA RUDRAPPA BANAPANAVAR, AGE: 64 YEARS, R/O: HAVERI.

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…….RESPONDENT

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(BY SRI SANTOSH NARAGUND, ADVOCATE FOR SRI A.S.PATIL, ADVOCATE)

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THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C., SEEKING TO QUASH THE ORDER PASSED BY THE PRL. DIST. & SESSIONS JUDGE, HAVERI, DATED 24.03.2015 IN UN-NUMBERED CRL.A……./2015 (FILING REG. CRL.A.NO.9/2015) OFFENCES UNDER SECTION 138 OF N.I.ACT.

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THIS PETITION COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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Though the matter is posted for admission, with the consent of the learned counsel for both the parties, it is taken up for final disposal.

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The brief points of the case are that;

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A criminal case came to be registered for the offence punishable under Section 138 of N.I.Act, by the respondent herein after referred to as ‘complainant’. The petitioner in this case is the accused against whom the orders are passed for payment of money and he shall be referred herein after as ‘accused’.

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As per the complaint the wife of accused Smt. Pushpa Bilagi was running a proprietorship firm under the name and style “Punit Cotton Trader”, Haveri and was also a partner in Sri Veerabhadreshwar Traders, Haveri. She was running the business at APMC market yard, Haveri from many years. Smt. Bilagi was in need of money to safeguard and improve the cotton business. Thus, Smt. Bilagi mortgaged her immovable properties by way of

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memorandum of deposit of title deeds and also executed the loan documents in favour of the complainant bank. In the year 2000, Smt. Bilagi borrowed a sum of Rs.10,00,000/- through OD but did not repay the amount/installments as agreed. The complainant bank met the accused, his wife Smt. Pushpa Bilagi and also the guarantors at Ranebennur address, furnished to the bank and demanded the repayment. The accused after informing his wife Smt. Bilagi issued an A/c payee cheque for Rs.16,75,916 in favour of complainant bank pertaining to State Bank of Mysore, bearing registration No.813102 dated 12.04.2007, asking to appropriate the proceeds of the cheque towards OD A/c No.41. On the same day, the complainant bank sent the said cheque for collection through State Bank of Mysore, Haveri Branch. The said cheque was dishonored on 13.04.2007 with an endorsement “Insufficient Funds”. In this connection the proceedings were initiated before the trial Court wherein the trial Court allowed the complaint and passed the order which is as under;

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“Acting U/Sec.255(2) of Cr.P.C. the accused is convicted for the offence punishable u/Sec.138 of N.I.Act.

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Acting u/Sec.357(1)(b) of Cr.P.C. the accused is hereby sentenced to pay a fine of Rs.16,85,916/-. In default of the payment of fine amount, the accused shall undergo simple imprisonment for 2 years.

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Out of the amount of fine amount of Rs.16,85,916/- a sum of Rs.16,75,916/- is ordered to be paid as compensation to the complainant and remaining amount of Rs.10,000/- ordered to be remitted to the State.

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The appeal was preferred by the accused against the order passed in C.C.No.651/2007, on the file of the Addl. Civil Judge & JMFC., Haveri, dated 02.01.2015, which also came to be dismissed. Incidentally, the order questioned under this petition is one dated 24.03.2015 in F.R.Crl.A.No.9/2015, which reads as under;

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“Heard Sri S.M.Katagi, learned counsel appearing for the appellant. He submits that appellant is unable to pay fine amount as is ordered by the Court below having regard to his

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financial conditions and therefore appeal may be ordered to be registered without deposit of the fine amount.

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Office raised objections stating that, appellant has not paid fine amount nor assigned any reason for not complying the payment of fine amount nor sought exemption thereof by filing the application. Therefore this appeal is not numbered.

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The fine amount as is ordered by the Court below is to the tune of Rs.16,85,916/and the actual fine amount is only Rs.10,000/- and the learned counsel for appellant did not make any payment insofar as compensation amount is concerned.

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No doubt in the order of the Court below, there is no specific mention as to what is the amount of fine that has been ordered. However on close reading of operative portion of the order of Court below, it is seen that a sum of Rs.10,000/- is ordered to be recovered as fine amount and remitted to the state and balance is payable to the complainant as compensation.

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Since there is no specific prayer made by the counsel for appellant by way of application seeking exemption of deposit of fine amount, the objections raised by the office are to be sustained. Since office objections have not been complied by the learned counsel for appellant, appeal cannot be registered for disposal in accordance with law.

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Accordingly, following order is passed.

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ORDER

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Appeal is not ordered to be registered and hereby dismissed.

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Learned counsel for the accused would submit the valid reasons are not assigned in the order passed by the learned Prl. District & Sessions Judge, Haveri dated 24.03.2015.

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Thus, no doubt the appeal was dismissed before the Prl. District & Sessions Judge, Haveri dated 24.03.2015 in F.R.Crl.A.9/2015, with the observation on non-compliance. Now that on preferring the present petition, the petitioner has deposited a sum of Rs.4,00,000/- as per order of this Court dated 31.08.2015.

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Thus the petitioner has deposited a sum of Rs.4,00,000/- and memo is filed to that effect by the learned counsel for the petitioner. Thus the matter has to go back to square one for adjudication before the First Appellate Court, wherein the matter has to be heard on

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merits from both sides. Accordingly, it requires to be remanded.

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Hence, petition is allowed and remanded back to the First Appellate Court.

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In view of the deposit made by the accusedpetitioner, the order passed by the learned Prl. District & Sessions Judge, Haveri dated 24.03.2015 in F.R.Crl.A.9/2015, is liable to set aside.

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In order to avoid judicial wastage of time, both the parties are directed to appear before the Prl. District & Sessions Judge, Haveri on 31.12.2018 and will not be issued any separate notice. The appeal be decided by the First Appellate Court as expeditiously as possible within an outer limit of six months.

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Sd/JUDGE

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msr

Shivayogeppa S/O. Basavanneppa Bilagi v. the Cardmom Merchants Co. Operative Bank Ltd.

Case brief

What is this about?

What did the court decide?

Shivayogeppa S/O. Basavanneppa Bilagi v. the Cardmom Merchants Co. Operative Bank Ltd.

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

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