Mr S Subramanya Bhat Vs Mr Nagaraj Tanthri

THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C BY THE ADVOCATE FOR THE PETITIONER PRAYING TO SETTING ASIDE THE ORDER OF THE ADDITIONAL SESSIONS JUDGE, FAST TRACK COURT, PUTTUR, D.K., DATED 28.11.2012, IN CRL.APPEAL NO.135/2011,AND CONSEQUENTLY REMAND THE

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NC: 2025:KHC:49269 CRL.RP No. 693 of 2018 C/W CRL.RP No. 694 of 2018

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2 -

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HC-KAR

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MATTER BACK TO THE LOWER APPELLATE COURT TO PASS AN ORDER ON MERITS.

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IN CRL.RP NO. 694/2018

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BETWEEN:

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KESHAVA HEBBAR, S/O ANANDA HEBBAR, AGED ABOUT 50 YEARS, R/O AGALI KOUSE, NADA VILLAGE, LAILA POST, BELTHANGADY TALUK - 574 214.

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...PETITIONER

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(BY SRI PRASAD K.S., ADVOCATE FOR SMT. ARCHANA MURTHY, ADVOCATE)

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AND:

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MR. NAGARAJ TANTHRI, S/O KESHAVA TANTHRI, AGED ABOUT 62 YEARS, R/AT KIRTHIKA HOUSE, MAIN ROAD, BAJPE, MANGALORE TALUK, D.K-574 214.

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...RESPONDENT

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(BY SMT. TASMIN A., ADVOCATE FOR SRI NATARAJA BALLAL, ADVOCATE)

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THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C BY THE ADVOCATE FOR THE PETITIONER PRAYING TO SETTING ASIDE THE ORDER OF THE ADDITIONAL SESSIONS JUDGE, FAST TRACK COURT, PUTTUR, D.K., DATED 28.11.2012, IN CRL.APPEAL NO.134/2011, VIDE ANNEXURE D AND REMAND THE MATTER BACK TO THE LOWER APPELLATE COURT TO PASS AN ORDER ON MERITS.

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THESE PETITIONS, COMING ON FOR ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE RAVI V HOSMANI

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HC-KAR

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ORAL ORDER

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Challenging order dated 28.11.2012 passed by Additional Sessions Judge, Fast Track Court at Puttur, D.K., (' Appellate Court ' for short), in Crl.A.no.135/2011 and Crl.A.no.134/2011, these revision petitions are filed.

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Sri K.S. Prasad, learned counsel appearing for Smt.Archana Murthy, advocate for petitioner submitted that these revision petitions were by complainants in C.C.no.191/2004 and C.C.no.1056/2003 on file of Civil Judge and J.M.F.C., Belthangady, D.K., (' Trial Court ', for short). It was submitted, private complaints were filed under Section 200 of Code of Criminal Procedure, 1973, (' CrPC ', for short) against respondent/accused alleging offence punishable under Section 138 of Negotiable Instruments Act, 1881, ( 'NI Act ', for short) as well as under Section 420 of Indian Penal Code, 1860, (' IPC ', for short).

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It was submitted, same ended in judgments dated 26.07.2011 convicting accused. Said judgments was challenged by accused in Crl.A.no.135/2011 and Crl.A.no.134/2011 which were disposed of on 28.11.2012 by Appellate Court by setting

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4 - NC: 2025:KHC:49269 CRL.RP No. 693 of 2018 C/W CRL.RP No. 694 of 2018

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HC-KAR

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aside impugned judgment and remitting matter back to Trial Court for de novo trial in light of ratio laid down by Hon'ble Supreme Court in case of Nitinbhai Saevanthilal Shah and Anr. v. Manubhai Manjibhai Panchal and Anr. , reported in 2011 SAR (Criminal) 808 , reiterated in Sankar Sarkar v. Subahraj and Anr. , reported in CDJ 2012 SC 234 .

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Assailing same, it was submitted that Hon'ble Supreme Court in case of Mehsana Nagrik Sahkari Bank Ltd. v. Shreeji Cab Company and Ors. , reported in 2014 (13) SCC 619 , had clarified that ratio in Nitinbhai Saevanthilal Shah 's case would apply only in case of summary trial by Magistrate and would not apply where evidence was recorded in full and not in summary manner. It was submitted, said proposition reiterated by Hon'ble Supreme Court in case of J.V. Baharuni and Anr. v. State of Gujarat and Anr. , reported in 2014 (10) SCC 494 . In view of above,

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it was submitted that order of remand passed by Appellate Court would not be justified and sought for setting aside of same.

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HC-KAR

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On other hand, Smt.Tasmin A., learned counsel appearing for Sri Natraja Ballal, advocate for accused opposed petition. It was submitted, Appellate Court had rightly applied ratio in Nitinbhai Saevanthilal Shah 's case and there was no scope for revision.

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Heard learned counsel, perused impugned

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judgment as well as ratio laid down by Hon'ble Supreme Court in decisions relied upon.

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Perusal of Trial Court records would indicate that recording of evidence by learned Magistrate in both cases was in full and not in summary manner. However, judgments were passed by a different Magistrate than one, who had recorded evidence. But, it is seen that ratio in Nitinbhai Saevanthilal Shah 's case would not apply where recording of evidence was in full, as clarified by Hon'ble Supreme Court in Mehsana Nagrik Sahkari Bank Ltd. and J.V. Baharuni cases (supra).

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In view of above, impugned judgments passed by Appellate Court remanding matter back to Trial Court for de

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HC-KAR

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novo trial would be unsustainable and contrary to law laid down

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by Hon'ble Supreme Court.

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In view of same, both criminal revision petitions are

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allowed , order dated 28.11.2012 passed by Appellate Court in Crl.A.no.135/2011 and Crl.A.no.134/2011 are set aside. Matter stands remitted back to Appellate Court to hear and decide

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appeals on merit, in accordance with law.

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SD/(RAVI V HOSMANI) JUDGE

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GRD

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List No.: 1 Sl No.: 24

Mr S Subramanya Bhat v. Mr Nagaraj Tanthri

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Mr S Subramanya Bhat v. Mr Nagaraj Tanthri

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