Allowed

Sri. Basavaraju B Gundenahalli v. Yogesh H.L.

Karnataka HC29 Aug 2023CRL.RP/497/2016

Case brief

AI extract

What is this about?

The High Court held that a Sessions Judge lacks jurisdiction to entertain an appeal against acquittal in a case instituted on a private complaint, reserving such power to the High Court under Section 378(4) CrPC, emphasizing that the impugned order was set aside.

What did the court decide?

The impugned order of conviction was set aside, the matter remanded to the Sessions Judge to return the appeal memo to the complainant, and a direction issued to all Sessions Judges to strictly comply

Sri. Basavaraju B Gundenahalli Vs Yogesh H.L. — Cheque Dishonour | Karnataka HC (2023)

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1 - NC: 2023:KHC:30866 CRL.RP No. 497 of 2016

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 29^TH DAY OF AUGUST, 2023

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BEFORE

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THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR CRIMINAL REVISION PETITION NO. 497 OF 2016

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BETWEEN:

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SRI. BASAVARAJU .B GUNDENAHALLI, S/O SRI. GUNDAPPA, AGED ABOUT 55 YEARS, APARNA STUDIO, MUNICIPAL COMPLEX, FIRST FLOOR, NEAR KSRTC BUS STAND, HAVERI NAGAR, HAVERI – 581 110.

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…PETITIONER (BY SRI. CHETHAN .B, ADVOCATE) AND:

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Digitally signed by RENUKAMBA K G

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Location: High Court of Karnataka

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YOGESH .H .L, S/O LAKKASHETTY, AGED ABOUT 41 YEARS, PROPRIETOR, SHIVAJYOTHI ELECTRONICS, HASSAN – 573 201, RESIDING AT JODIKRISHNAPURA VILLAGE, KORAMANGALA POST, DUDDA HOBLI, HASSAN – 573 201.

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…RESPONDENT (BY SRI. NANAIAH .M.T, SENIOR COUNSEL FOR SRI. Y.S. MURUGENDRA, ADVOCATE)

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THIS CRL.RP IS FILED U/S.397 R/W 401 OF CR.P.C PRAYING TO SET-ASIDE THE JUDGMENT DATED 04.09.2015 IN CRL.A.NO.39/2013 PASSED BY THE II ADDL. DISTRICT AND S.J., HASSAN; BY CONFIRMING THE JUDGMENT DATED 31.12.2012 IN C.C.NO.570/2006 PASSED BY THE ADDL. CIVIL JUDGE AND JMFC, AT HASSAN.

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NC: 2023:KHC:30866 CRL.RP No. 497 of 2016

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

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ORDER

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Heard.

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This revision is filed against the judgment of conviction passed by II Additional Sessions Judge, Hassan in Crl.A.No.39/2013 dated 04.09.2015 whereby, the learned Sessions Judge set aside the acquittal order of the learned Magistrate for the offence punishable under Section 138 of Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act' for short) and convicted accused.

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The records disclose that the complainant has filed a complaint under Section 200 of Criminal Procedure Code, 1973 (hereinafter referred to as ‘the Code’ for short) for the offence under Section 138 Act.

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The learned Magistrate has taken cognizance and subsequently after trial and after hearing both the parties, acquitted the accused / revision petitioner herein by exercising the powers under Section 255 (1) of the Code for the offence under Section 138 of the N.I. Act. The said order is challenged

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3 - NC: 2023:KHC:30866 CRL.RP No. 497 of 2016

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by the complainant before the II Additional Sessions Judge, Hassan in Crl.A.No.39/2013. The learned Sessions Judge set aside the order of the learned Magistrate and convicted the accused for the offence under Section 138 of the Act by imposing the sentence. This order is under challenge before this court.

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Before considering the matter on merits, Section 378(4) of the Code is requires to be considered, which reads as under:

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378. Appeal in case of acquittal.

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(1) xxxxx

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(2) xxxxx

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(3) xxxxx

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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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It is evident that, the present case was registered on the basis of a complaint and not on police report. In view of the same, under Section 378(4) of the Code, the learned Sessions

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4 - NC: 2023:KHC:30866 CRL.RP No. 497 of 2016

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Judge do not have any power to entertain any appeal against the judgment of conviction. The power vests with the High Court and that too the appeal can be filed with the leave of the court.

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5. In ‘ SUBHASH CHAND VS. STATE (DELHI

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ADMN.)’, (2013) 2 SCC 17 the Hon’ble Apex Court has dealt with the provisions of Section 200 to 204 with reference to Section 378(4) of the Code and the jurisdiction of the court in

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case of acquittal, wherein it is observed as under:

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“ A. Criminal Procedure Code, 1973-Ss.378(4) and 2(d) & (r) and Ss.200 to 204- Complainant-Who may beDetermination of –appeal against acquittal in complaint case-Proper mode and forum for-Held, complainant might be a private person or public servant or State/State authority-In view of provisions of Ss.2(d) and 2(r) CrPC, whether a case is a case instituted on a complaint depends on legal provisions relating to offence involved therein-But once it is a case instituted on a complaint and an order of acquittal is passed, whether offence be bailable or no-bailable, cognizable or non-congnizable, complainant can only file application under S. 378(4) CrPC for special leave to appeal against it in High CourtS.378(4) places no restriction on complainant-But complainant cannot file such appeal in Sessions CourtWords and Phrases-“Complainant” and ‘complaint” B. Criminal Procedure Code,1973-Ss.378(1)(a) & (1)(b), (as they stand after 2005 amendment), Ss. 378(2), (3), (4), (5), (6), 2(d) & (r), 173 and 154 – Acquittal in complaint case filed by State/State authorityAppeal by complainant State-S.378(1)(a) applicable or S.378(4)-State’s complaint filed through its Local Health Authority J against appellant herein for committing offence punishable under Ss.16(1) & (1-A), Prevention of food Adulteration Act r/w S.7 thereof for violating various

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5 - NC: 2023:KHC:30866 CRL.RP No. 497 of 2016

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provisions of said Act and Rules thereunder-Magistrate thereupon trying and acquitting the accused-Held, complainant State could only file application under S.378(4) for special leave to appeal against acquittal, and could not maintain such appeal in Sessions Court under S.378(1)(a) since appeal was in its capacity as complainant-Scope of word “in any case” occurring in s.378(1)(b), explained-Legal position pre-and post-2005 amendment compared and contrasted-Prevention of Food Adulteration Act, 1954, Ss.16(1) & (1-A) and 7”

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The learned Sessions Judge, in the instant case, not

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only entertained an appeal under Section 372 of the Code against the acquittal, but he has reversed the judgment of acquittal and thereby convicted the accused for the offence under Section 138 of the Act. The entire exercise of the learned Sessions Judge is without jurisdiction. However the learned session Judge lacks any jurisdiction to entertain the appeal.

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In view of the same, the revision needs to be

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allowed and accordingly, I proceed to pass the following:

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O R D E R

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(i) The revision petition is allowed.

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(ii) The impugned order passed by II Additional Sessions Judge, Hassan in Crl.A.No.39/2013 dated 04.09.2015 is set aside. However, the matter is remanded to the learned Sessions Judge and he is directed to exercise his powers and return the appeal memo to the complainant for presentation before

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NC: 2023:KHC:30866 CRL.RP No. 497 of 2016

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appropriate court under Section 378(4) of the Code of Criminal Procedure, 1973.

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(iii) It has come to the notice of the court that the order of acquittal for the offence under Section 138 of the Act are being regularly challenged before Session Judges and this court has regularly observed that the learned Sessions Judge does not have any jurisdiction to entertain such an appeal. The learned Sessions Judges are ignoring the provisions of Section 378(4) of the Code. This court vide order dated 06.03.2023 in Crl.A.No.1624/20221 issued instructions to all the Presiding officers in this regard but, inspite of the same, such appeals are routinely being entertained. Hence, Registry is directed to circulate the order to all the Sessions Judges in the State with a direction to strictly comply the provisions of Section 378(4) of the Code while entertaining an appeal against acquittal on the basis of a case registered on a private complaint.

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Sd/JUDGE

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List No.: 1 Sl No.: 26

Sri. Basavaraju B Gundenahalli v. Yogesh H.L.

Case brief

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Sri. Basavaraju B Gundenahalli v. Yogesh H.L.

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