Dismissed

Siddalingappa S/O. Basappa Panadi, v. Mallikarjun B Mavalli

Karnataka HC16 Dec 2020CRL.A/100341/2018

Case brief

AI extract

What is this about?

The High Court held that an appellate court order setting aside a conviction and remanding the case to the trial court for fresh disposal is an order of remand, not an order of acquittal. Consequently, an appeal by the complainant under Section 378(4) of Cr.P.C. challenging such a remand order is not maintainable.

What did the court decide?

Appeal under Section 378(4) of Cr.P.C. dismissed as not maintainable; pending application disposed of.

Siddalingappa S/O. Basappa Panadi, Vs… — Civil Procedure and Limitation | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 16^{T H} DAY OF DECEMBER, 2020

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BEFORE

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THE HON’BLE MR. JUSTICE PRADEEP SINGH YERUR

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CRIMINAL APPEAL NO.100341/2018

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BETWEEN:

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SIDDALINGAPPA S/O.BASAPPA PANADI AGE: 38 YEARS, OCC: PRIVATE, R/O. MAVALLI BUILDING, 2^{N D} CROSS, JAYANAGAR, DHARWAD-580001.

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….APPELLANT.

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(BY SHRI SHRIHARSH NEELOPANT, ADVOCATE.)

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AND:

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MALLIKARJUN B. MAVALLI AGE: 63 YEARS, OCC: BUSINESS, R/O. MAVALLI BUILDING, 2^{N D} CROSS, JAYANAGAR, DHARWAD-580001.

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….RESPONDENT.

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(BY SHRI M.H.PATIL, ADVOCATE.)

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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4) OF CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT DATED 27.10.2018, PASSED BY IV ADDL. DISTRICT AND SESSIONS JUDGE, DHARWAD, IN CRL.A.NO.92/2017, ETC.,.

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THIS APPEAL COMING ON FOR ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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This appeal is preferred by complainant

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against the judgment dated 27.10.2018 passed by IV Addl. District and Sessions Judge, Dharwad, in Crl.A.No.92/2017, wherein appellate Court while allowing the appeal set aside the judgment of conviction passed by trial Court and remitted back the matter to trial Court for fresh disposal by giving an opportunity to accused to put forth all his defence as available in law and directed accused and complainant to appear before trial Court on 30.11.2018 without expecting any notice from the Court. Appellate Court further directed trial Court to dispose of the matter within a period of six months from their appearance before the Court.

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Though this matter is listed for orders, with consent of both parties, the matter is taken up for final disposal.

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For the sake of convenience, parties shall be referred to as per their status before trial Court.

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Brief facts leading to filing of this appeal are as under:

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Accused herein is a friend of complainant. There was an agreement of sale executed by wife of accused in favour of complainant for sale of two guntas of land bearing plot No.28 for a total consideration of Rs.18,50,000/-. On the same day complainant paid a sum of Rs.18,45,000/- as earnest money and accused received the same on behalf of his wife. Thereafter as agreed between parties, there was a cancellation of agreement of sale and accordingly cheque bearing No.026997 for an amount of Rs.18,45,000/- dated 17.1.2011 was drawn in favour of complainant towards return of earnest money for the above said transaction. Thereafter when complainant presented the said cheque for encashment, the same came to be returned with an endorsement

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‘funds insufficient’. Complainant got issued a legal notice to accused on 7.2.2011 demanding repayment of the said amount. As accused neither paid the demanded amount nor replied to the said notice, complainant lodged a complaint against accused for the offence punishable under section 138 of Negotiable Instruments Act (‘the Act’ for short).

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On cognizance being taken, presence of accused was secured and he was enlarged on bail. Accused pleaded not guilty and claimed to be tried and accordingly he was tried. In order to prove the case of complainant, he got examined himself as PW.1 and got marked Exs.P.1 to P.25 and closed his side. Thereafter statement of accused was recorded as required under section 313 of Cr.P.C., wherein accused denied all incriminating evidence against him. However he did not choose to lead any defence evidence neither did he produce any documents in support of his case.

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After going through the entire materials

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and documents produced by complainant, trial Court came to the conclusion that complainant made out a case to attract provisions of section 138 of Negotiable Instruments Act and accused has not rebutted the presumption cast in favour of complainant and neither did accused step into witness box to rebut the evidence of complainant and therefore held accused guilty of offence punishable under section 138 of the Act and accordingly convicted accused and sentenced him to pay a fine of Rs.30,00,000/- and in default of payment of fine, to undergo simple imprisonment for a period of one year and out of fine amount, directed accused to pay a sum of Rs.29,95,000/as compensation to complainant and Rs.5,000/- to be paid to State.

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Aggrieved by said judgment of conviction passed by trial Court, accused preferred an appeal before appellate Court in Crl.A.No.92/2017. On careful re-appreciation and

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re-evaluation of entire material evidence, both oral and documentary, appellate Court went on in detail considering the matter on merits of the case and came to conclusion that conviction order passed by trial Court is not sustainable in law and set aside the order of trial Court and remitted back the matter to trial Court for fresh disposal by giving opportunity to accused and complainant and further gave a direction to trial Court to dispose of the matter within a period of six months.

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Appellant/complainant is before this

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Court challenging the said judgment of remand made by appellate Court by filing the present appeal. It is contended by learned counsel for appellant that the judgment passed by appellate Court setting aside the judgment of conviction passed by trial Court is perverse in law and contrary to material evidence on record and hence the same requires to be set aside.

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The present appeal is preferred by the complainant under Section 378(4) of Cr.P.C. to set aside the judgment of the appellate Court in Criminal Appeal No.92/2017. It is contended by learned counsel for complainant that the Judgment passed by the appellate Court by setting aside the order of conviction passed by the trial Court amounts to an order of acquittal as the conviction order is set aside. Therefore, he has filed the present appeal under Section 378(4) of Cr.P.C. It is further contended by learned counsel that while setting aside the Judgment of conviction, the appellate Court has gone into the merits of the case and has dealt with the matter in detail and almost pronounced an order of acquittal. Hence, aggrieved by this order, he has preferred this appeal to set aside the order passed by the appellate Court.

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Learned counsel for the respondent has primarily taken the contention that the petition is not maintainable as there is no order of acquittal

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passed by the appellate Court. Therefore, present appeal filed by the appellant is not maintainable in law.

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11.In support of the case learned counsel for

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the appellant relies on the following Judgments:

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(1) C.Gopinathan Vs. Krishnan Ayyappan and Others, reported in (2000) 9 SCC 430.

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(2) P. Mazher Vs. State of A.P. and Another, reported in 2003 CRI.L.J.3269.

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(3) State of Madhya Pradesh Vs. Ambalal Premchand, reported in 1970 0 CrLJ 427.

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Having gone through the facts of the said cases same are not applicable to the present facts of the case as in the case of C.Gopinathan stated supra the matter deals with the order of the High Court in remanding the matter to Magistrate for the purpose of getting the report from Probation

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Officer and to pass the appropriate sentence thereon.

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In the case of P.Mazher Vs. State of A.P. and Another and in the case of State of Madhya Pradesh Vs. Ambalal Premchand, the same may not be helpful to the appellant/complainant as do not dealt with an order of acquittal.

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Admittedly, the above appeal arises out of the Judgment passed by the appellate court, wherein appellate Court has allowed the appeal filed by the accused and set aside the Judgment of conviction passed by the trial Court and has remitted the matter to trial Court for fresh disposal by giving an opportunity to accused to putforth of his defence which is available under law. The appellate Court further directed both the

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parties to be present before the trial Court on 30.11.2018 with a further direction to the trial Court to dispose off the matter within a period of six months from the date of appearance of

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parties. Therefore, admittedly, the order that has been challenged in this appeal is an order of remand passed by the appellate Court setting aside the Judgment of conviction passed by the trial Court and remitting it to the trial Court for fresh disposal of the case. In this view of the matter, it is essential to extract provision of Section 378 (4) of Cr.P.C.

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“378. Appeal in case of acquittal.xxxxxxxxxxx

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(4) If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court.”

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A bare reading of this provision is clear

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that there is no ambiguity that this provision will be applicable if there is an order of acquittal and on an application made to the High Court by the complainant; a special leave is granted the

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complainant may present such an appeal before the High Court. Therefore, the appeal filed under Section 378(4) of Cr.P.C. would be maintainable if there is any order of acquittal passed in the case instituted upon complainant. But on perusal of the present case, it is seen that the order under challenge is the order of remand made by the appellate Court remanding the matter to trial Court for fresh disposal of the case by giving an opportunity to the respondent/accused to putforth his defence as available under law.

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The moot point for consideration before this court as canvassed by learned counsel for the appellant/ complainant is that the order of appellate Court setting aside the Judgment of conviction passed by the trial Court amounts to an order of acquittal. In my considered opinion, the said proposition is wrong and same cannot be accepted in view of the fact that setting aside of an order and remanding it back to the trial Court for fresh disposal would not amounts to an order

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of acquittal and neither is it an order of conviction. Therefore, when the matter is remitted back to the trial Court with a specific direction to fresh disposal of the matter by fixing the date would not amounts to acquittal of the accused. Hence, the present appeal filed by the appellant would not come within the purview of Section 378(4) of Cr.P.C. Therefore, I am of the opinion that the present appeal as brought out by appellant filed under Section 378(4) of Cr.P.C. is not maintainable and the same is dismissed. Nevertheless, the appellant is at liberty to initiate appropriate proceedings as contemplated under law.

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In view of dismissal of the appeal, pending application, if any, does not survive for consideration, accordingly same is disposal off.

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Sd/JUDGE

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MRK/ckk

Siddalingappa S/O. Basappa Panadi, v. Mallikarjun B Mavalli

Case brief

What is this about?

What did the court decide?

Siddalingappa S/O. Basappa Panadi, v. Mallikarjun B Mavalli

Case brief

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What did the court decide?

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