Allowed

Yashvant S/O Basavantappa Soraganvi v. Shivashakti Souhard Pattin Sahakari Niyamit

Karnataka HC15 Oct 2024CRL.RP/100418/2023

Case brief

AI extract

What is this about?

A conviction under Section 138 NI Act was upheld on appeal, but the appellate court dismissed the accused's appeal for default for non-deposit of 25% fine despite the fine having been fully deposited before filing. The High Court held dismissal illegal and remanded the appeal for fresh disposal on merits.

What did the court decide?

Impugned order dated 26.09.2023 in Crl.Appeal No.5030/2023 set aside; matter remanded to appellate court to decide afresh within one month; parties directed to appear on 28.10.2024.

Yashvant S/O Basavantappa Soraganvi Vs Shivashakti… — Cheque Dishonour | Karnataka HC (2024)

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NC: 2024:KHC-D:14939 CRL.RP No. 100418 of 2023

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 15^TH DAY OF OCTOBER, 2024 BEFORE

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THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR CRIMINAL REVISION PETITION NO. 100418 OF 2023

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(397(Cr.PC)/438(BNSS)-)

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BETWEEN:

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YASHVANT S/O. BASAVANTAPPA SORAGANVI, AGE: 51 YEARS, OCC: BUSINESS, R/O. BEHIND BADDUR HOSPITAL, NEAR BANAKAR PETROL PUMP, BANHATTI, TQ: RABAKAVI-BANAHATTI, DIST: BAGALKOTE-587311.

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…PETITIONER

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(BY SRI. S.C. BHUTI, ADVOCATE)

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AND:

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SHIVASHAKTI SOUHARD PATTIN SAHAKARI NIYAMIT, BAGALKOT, BRANCH BANHATTI, TQ: RABAKAVI-BANAHATTI, DIST: BAGALKOTE, R/BY ITS BRANCH MANAGER, RAVINDRA S/O. KADAPPA MANDI, AGE: 39 YEARS, OCC: BRANCH MANAGER, R/O. BANHATTI, TQ: RABAKAVI-BANAHATTI, DIST: BAGALKOTE-587311.

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…RESPONDENT

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MANJANNA E

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Digitally signed by MANJANNA E Location: HIGH COURT OF KARNATAKA DHARWAD BENCH

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(BY SRI. SHIVARAJ P. MUDHOL, ADVOCATE) THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 R/W 401 CR.P.C. SEEKING TO

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i. CALL FOR THE RECORDS OF THE COURTS BELOW;

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ii. ALLOW THIS REVISION PETITION AND SET ASIDE THE ORDER DATED 26.09.2023 PASSED IN CRIMINAL APPEAL NO. 5030/2023 ON THE FILE OF I ADDL. DIST. AND SESSIONS JUDGE, BAGALKOTE TO SIT AT JAMKHANDI AND REMAND THE MATTER TO THE APPELLATE COURT FOR DISPOSAL OF THE APPEAL ON MERITS IN ACCORDANCE WITH LAW AND ETC.

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THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,

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THE COURT MADE THE FOLLOWING:

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ORAL ORDER

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(PER: THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR)

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This petition is filed by the petitioner/accused

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challenging the judgment of conviction and order of sentence passed in C.C.No.19/2021 (Old No.975/2017) by the Senior Civil Judge and JMFC at Banahatti, which came to be confirmed in Crl.Appeal No.5030/2023 dated 26.09.2023 by the I Additional District and Sessions Judge, Bagalkote sitting at Jamakhandi, Bagalkote.

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The respondent lodged a complaint under Section 200 of Cr.P.C. for the offence punishable under Section 138 of the Negotiable Instruments Act against the petitioner. The trial Court on being satisfied with the materials placed before it, and on appreciation of the evidence adduced by the parties i.e., the petitioner and the respondent, convicted the petitioner/accused for the offence punishable under Section 138 of the Negotiable Instruments Act and sentenced him to undergo simple imprisonment for six months with fine of Rs.5000/- and in

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default of payment of fine, undergo further simple imprisonment for a period of three months. The trial Court also ordered to pay compensation of Rs.1,16,736/- to the complainant-Society acting under Section 357 of Cr.P.C. within a period of one month from the date of the said order.

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Aggrieved by the judgment of conviction and order of sentence, passed by the trial Court, the petitioner preferred an appeal in Crl.Appeal No.5030/2023 before the I Additional District and Sessions Judge, Bagalkote sitting at Jamkhandi, Bagalkote. The Appellate Court at the first instance passed an interim order, suspending the sentence of the petitioner/accused, subject to the condition that the petitioner would deposit 25% of the fine amount within four weeks from the said date i.e., 27.06.2023. Thereafter, by an order dated 26.09.2023, the Appellate Court dismissed the appeal for default, on the ground that the petitioner who was appellant therein had not complied the order of 27.06.2023 granting the suspension of the conviction and sentence of the order of the trial Court.

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The petitioner is before this Court, questioning

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the order passed by the Appellate Court, wherein the appeal came to be dismissed for default. It is the vehement contention of the learned counsel for the petitioner that the Appellate Court has committed gross error while dismissing the appeal on the ground of default for non-payment of 25% of the fine amount, which was imposed by the Appellate Court vide its order dated 27.06.2023. It is further contended by the learned counsel that the Appellate Court has not carefully gone through its own order, while dismissing the appeal for default for the reason that while imposing the condition of deposit of 25% of the total fine amount, the Appellate Court has failed to see that the fine imposed by the trial Court is only Rs.5000/- and the said amount of Rs.5000/- was deposited by the petitioner/accused on 26.05.2023 itself much prior to the filing of the appeal. Therefore, the question of there being any default or breach of the condition on the order passed by the Appellate Court would not arise, as the petitioner had complied with the

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NC: 2024:KHC-D:14939 CRL.RP No. 100418 of 2023

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order of 25% rather he had paid the entire fine amount of

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Rs.5000/-which was imposed by the trial Court.

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Learned counsel for the petitioner contends that

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the Appellate Court ought not to have dismissed the appeal for default, it could have vacated the interim order, heard the matter on merits and could have disposed of the matter on merits, rather than dismissing the appeal for default, which has not been done by the Appellate Court, thereby causing miscarriage of justice to the petitioner/accused. It is vehemently contended by the learned counsel for the petitioner that the petitioner has a

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very good case on merits and he is confident of being successful in the appeal, therefore, the order passed by the Appellate Court is liable to be set aside and an opportunity is to be given to the petitioner to put forth his

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case, and argue the matter on the merits of the case before the Appellate Court.

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It is also the contention of the learned counsel

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for the petitioner that the petitioner has rebutted the presumption cast in favour of respondent/complainant and

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therefore the case made out by the respondent before the trial Court requires to be set aside. On these grounds, he contends that the impugned order of the Appellate Court is liable to be set aside and the matter may be remanded to the Appellate Court for re-consideration of the appeal afresh. Accordingly, he seeks to allow the petition.

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Per contra, learned counsel representing the respondent/complainant Shri Shivraj Mudhol, vehemently opposes the arguments put forth by the learned counsel for the petitioner, on the ground that there is no infirmity, illegality or perversity in the order passed by the Appellate Court, as the Appellate Court had suspended the sentence, subject to the petitioner depositing 25% of the fine amount within four weeks and the amount of fine as ordered, has not been deposited, so also the compensation imposed by the trial Court to an extent of 25% has not been deposited, therefore, there is no illegality or perversity in the order passed by the Appellate Court. He also contends that the Appellate Court had granted sufficient time to comply its order, but the petitioner failed

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to comply with the order. The Appellate Court was left with no other alternative, but to dismiss the appeal, as opportunity was not utilised by the petitioner. On these grounds he seeks to dismiss the petition.

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I have heard the learned counsel for the

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petitioner and the learned counsel for the respondent.

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There is no dispute of the fact that the appeal preferred by the petitioner came to be dismissed for default. It is also borne from the records that initially the appeal came to be admitted and the suspension was granted subject to deposit of 25% of the fine amount within four weeks. It is also a fact that the petitioner had deposited the fine amount of Rs.5000/- prior to the filing of the appeal itself. The order in specific was to deposit 25% of the fine amount and not the compensation amount. Therefore, petitioner had complied with the order of the Appellate Court. Learned counsel for the petitioner has relied upon the judgment of the Co-ordinate Bench of this Court, in Crl.R.P.No.100072/2023. The same is squarely applicable to the present facts of the case.

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Under the circumstances the question of

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dismissing the appeal for default for non-compliance of its order of 27.06.2023, is illegal, perverse and contrary to the materials placed on record. The Appellate Court is duty bound to hear the matter on merits even if interim order while suspending sentence is not complied. It can vacate the interim order, hear the matter on merits and pass order accordingly. Under these circumstances, the appeal would have to be re-heard by providing an opportunity to the petitioner to put forth his case on the merits of the matter. Accordingly, I pass the following:

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ORDER

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i. Petition is allowed.

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ii. The impugned order dated 26.09.2023

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in Crl.Appeal No.5030/2023 passed by the I Additional District and Sessions Judge, Bagalkote sitting as Jamkhandi, Bagalkote, is hereby set aside.

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iii. The matter is remanded back to the

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Appellate Court to consider it afresh, in a time bound manner.

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iv. The Appellate Court shall decide the matter, providing suitable opportunity to both the petitioner as well as the respondent, within a period of one month from the date of receipt of copy of the order.

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v. It is made clear that this Court has not

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expressed any opinion on the merits of the matter.

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vi. The parties, i.e., both the petitioner and the respondent shall appear before the Appellate Court on 28.10.2024 without awaiting any notice from the Appellate Court or this Court.

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vii. The respondent is at liberty to move an

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application before the Appellate Court for withdrawal of the amount deposited by the petitioner.

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