M/S Sree Maha Ganapathi Traders vs N.S. Ravi
2021 Latest Caselaw 1567 Kant

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

    DATED THIS THE 11TH DAY OF FEBRUARY 2021

                           BEFORE

THE HON'BLE Dr. JUSTICE H.B. PRABHAKARA SASTRY

  CRIMINAL REVISION PETITION NO.1108 OF 2011
                     C/W.
  CRIMINAL REVISION PETITION NO.392 OF 2013


CRIMINAL REVISION PETITION NO.1108 OF 2011

BETWEEN:

M/s. Sree Maha Ganapathi Traders
By its Proprietor,
S. Ravindranatha, S/o.
Late Shivaramaiah,
Aged about 50 years,
Residing at No.29, 2nd Floor,
VUH Complex, Annadanappa Lane,
Avenu Road Cross,
Bangalore - 560 002.
                                             ..Petitioner
(By Sri. Kemparaju for A Lawmen's Chamber)

AND:

N.S. Ravi
S/o. Subramanyam Sasthri,
Aged about 48 years,
Residing at No.52, 4th Cross
Malleswaram,
Bangalore - 560 003.
And also working at
M/s. D.T.D.C. Courier Cargo Ltd.,
No.269, Lahari Towers,
                                                 Crl.R.P.No.1108/2011
                                             c/w.Crl.R.P.No.392/2013
                               2


First Main Road,
Chamarajpet,
Bangalore -18.
                                           .. Respondent
(By Sri.K. Nagabhushan Reddy, Advocate)

                                ****

      This Criminal Revision Petition is filed under Section 397
r/w. Section 401 of the Code of Criminal Procedure, 1973,
praying to set aside the order dated 19-10-2010 passed by the
XV Additional Chief Metropolitan Magistrate, Bangalore in
C.C.No.12614/2007 and order dated 30-07-2011 passed by the
Presiding Officer, City Fast Track (Sessions) Judge, Bangalore
City (F.T.C.No.VII), Bangalore City in Crl.A. No.868/2010 etc.

CRIMINAL REVISION PETITION NO.392 OF 2013

BETWEEN:

Sri. Ravindranath S.,
S/o. Late Shivaramaiah,
Aged about 50 years,
Proprietor of
M/s. Sree Maha Ganapathi Traders
At No.29, 2nd Floor,
VUH Complex, Annadanappa Lane,
Avenue Road Cross,
Bangalore - 560 002.
                                                 ..Petitioner
(By Sri. Kemparaju for A Lawmen's Chamber)

AND:

N.S. Ravi
S/o. Subramanyam Sastri,
Aged about 48 years,
Residing at No.52, 4th Cross
Malleswaram,
Bangalore - 560 003.
And also working at
                                                         Crl.R.P.No.1108/2011
                                                     c/w.Crl.R.P.No.392/2013
                                   3


M/s. D.T.D.C. Courier Cargo Ltd.,
No.269, Lahari Towers,
First Main Road,
Chamarajpet,
Bangalore -18.
                                                    .. Respondent
(By Sri.R.K. Mahadeva, Advocate)

                                 ****
      This Criminal Revision Petition is filed under Section 397
r/w. Section 401 of the Code of Criminal Procedure, 1973,
praying to set aside the judgment and order of acquittal dated
19-10-2010 passed by the XV Additional Chief Metropolitan
Magistrate, Bangalore in C.C.No.12499/2007 and confirmed by
the order dated 22-01-2013 passed by the Presiding Officer, Fast
Track Court -XIII, Bangalore City in Crl.A. No.870/2010 etc.

      These Criminal Revision Petitions coming on for Final
Hearing, through Physical Hearing/Video Conferencing Hearing
this day, the Court made the following:

                               ORDER

These two Criminal Revision Petitions are filed by the

complainant - Sri. S. Ravindranatha. He had instituted two

criminal complaints against the present respondent in the Court

of the XV Additional Chief Metropolitan Magistrate, Bangalore

City (hereinafter for brevity referred to as the "Trial Court")

under Section 200 of the Code of Criminal Procedure, 1973

(hereinafter for brevity referred to as the "Cr.P.C.") in

C.C.No.12614/2007 and C.C.No.12499/2007, for the offence Crl.R.P.No.1108/2011 c/w.Crl.R.P.No.392/2013

punishable under Section 138 of the Negotiable Instruments Act

1881,(hereinafter for brevity referred to as the "N.I. Act").

2. Admittedly, after due trial, the said matter ended in

acquittal of the accused therein, who is the present respondent,

by its common judgment dated 19-10-2010. Challenging the

said common judgment of acquittal, the complainant in the Trial

Court preferred two criminal appeals under Section 372 of the

Cr.P.C. in Criminal Appeal No.868/2010 in C.C.No.12614/2007

before the Court of City Fast Track (Sessions)Judge, Bangalore

City (F.T.C.No.VII) (hereinafter for brevity referred to as the

"FTC-VII") and Criminal Appeal No.870/2010 in

C.C.No.12499/2007 before the Court of Fast Track - XIII,

Bangalore City (hereinafter for brevity referred to as the

"FTC-XIII").

3. The learned FTC-VII and FTC-XIII, after hearing both

side, dismissed the criminal appeals by its judgments dated

30-07-2011 and 22-01-2013 respectively and confirmed the

judgment of acquittal passed by the Trial Court. Aggrieved by

the same, the complainant in the Trial Court who was the

appellant in the FTC-VII and FTC-XIII, has preferred these two Crl.R.P.No.1108/2011 c/w.Crl.R.P.No.392/2013

Memorandum of Criminal Revision Petitions under Section 397

read with Section 401 of the Cr.P.C.

4. When these two matters were listed for their final

hearing on the previous date of hearing, before the learned

counsel for the petitioner could commence his arguments,

learned counsel for the respondent, with the permission of the

Court submitted that, the present revision petitions are not

maintainable and that only an appeal would lie under Section

378(4) of the Cr.P.C., as such, the maintainability of the revision

petitions be heard and considered.

5. Accordingly, learned counsel for the petitioner confined

his arguments only on the question of maintainability. Though

he contended that under Section 397 of the Cr.P.C., this Court

can revise the order passed by the Courts sub-ordinate to it,

however, he sought for sometime to make his further submission

in that regard. Accordingly, the matter was taken up today.

Learned counsel for the petitioner, who, in the first round,

when the matter was called, was appearing through video

conference, sought for a pass over of the matter stating that, his

colleague would produce a copy of the un-reported order of this Crl.R.P.No.1108/2011 c/w.Crl.R.P.No.392/2013

Court regarding maintainability of these petitions. Accordingly,

the matter which was initially taken up in the beginning of the

afternoon session was passed over and was taken up at the end

of the session.

Now, when the matter was taken up again, learned counsel

for the petitioner appearing through video conference relied upon

an order passed by the co-ordinate bench of this Court in the

case of Sri C. Shekar Vs. Smt. K. Saraswathi in Criminal

Revision Petition No.674/2015 dated 08-02-2019, by placing a

photocopy of that order before this Court through his colleague

who is physically present in the Court and submitted that, by

virtue of the said order, the present revision petitions are

maintainable.

6. A perusal of the said order would go to show that in the

said case of Sri. C. Shekar Vs. Smt. K. Saraswathi (supra), the

complaint filed by the complainant in C.C.No.17243/2009 under

Section 200 of the Cr.P.C. for the offence punishable under

Section 138 of the N.I. Act, before the XIII Additional Chief

Metropolitan Magistrate at Bengaluru ended in acquittal of the

accused in its judgment dated 15-03-2013. Against the said Crl.R.P.No.1108/2011 c/w.Crl.R.P.No.392/2013

judgment of acquittal, the complainant in the Trial Court

preferred a criminal appeal in Crl. Appeal No.195/2013 before

the Fast Track Court-IV, Bengaluru City. The said criminal

appeal ended in conviction of the accused under the judgment

dated 15-11-2014 of the said Fast Track Court. Challenging the

same, the accused preferred a revision petition in Criminal

Revision Petition No.674/2015 before this Court under Section

397 read with Section 401 of the Cr.P.C.

A contention was taken up in the said revision petition by

the respondent therein regarding maintainability of the petition.

After hearing both side, this Court held that, against the

judgment of acquittal, it is only an appeal that would lie under

Section 378 of Cr.P.C., but a revision under Section 397 of

Cr.P.C. would not lie. However, considering the request made by

the petitioner before it, seeking liberty to prefer an appeal before

the Court, this Court while setting aside the judgment passed by

the Fast Track Court -IV therein, gave liberty to the petitioner

before it to prefer a criminal appeal after giving the benefit of

time consumed under wrong proceedings under Section 14 of

the Limitation Act, 1963.

Crl.R.P.No.1108/2011 c/w.Crl.R.P.No.392/2013

7. In the instant case also, against the judgment of

acquittal, the complainant had wrongly approached the learned

FTC-VII and FTC-XIII instead of approaching this Court under

Section 378(4) of the Cr.P.C. However, both the parties

contested the matter before the said FTC-VII and FTC-XIII,

which matter also ended in acquittal of the accused. Therefore,

there are judgments of acquittal by both the Trial Court as well

by the Sessions Judge's Courts in the matter. Thus, in either

way, the challenge, if any, the complainant intends to make

against the impugned judgments of acquittal, can by no stretch

of imagination be through a revision under Section 397 of the

Cr.P.C. and it is only under Section 378(4) of the Cr.P.C. in the

form of a criminal appeal.

8. It is at this juncture, learned counsel for the petitioner

who also contended that he has been in search of another

judgment of a co-ordinate bench of this Court stated to have

been rendered about ten years back regarding maintainability,

concedes that he would withdraw the present revision petitions,

however, liberty be granted to him to file criminal appeals and Crl.R.P.No.1108/2011 c/w.Crl.R.P.No.392/2013

the benefit of Section 14 of the Limitation Act also be given to

him.

9. In the circumstances, needless to say that a judgment

passed by a Court which does not have a jurisdiction to try the

matter is a nullity in the eye of law. As such, without much

discussion, it can be held that the impugned judgment passed by

the learned FTC-VII and FTC-XIII in the matter in Criminal

Appeal No.868 of 2010 and Criminal Appeal No.870 of 2010 is a

nullity in the eye of law. Consequently, the appeals which are

required to be preferred against the judgments of acquittal would

only be before this Court under Section 378(4) of the Cr.P.C.

Since by misconception of law, the complainant approached the

FTC-VII and FTC-XIII, wherein, the accused as a respondent also

without raising any objection about the maintainability of the

said appeals before the said Courts participated in its

proceedings, I am of the view that the complainant be given an

opportunity to prefer an appeal under Section 378(4) of the

Cr.P.C.

10. At the same time, considering the fact that despite

there being a specific provision for challenging the acquittal order Crl.R.P.No.1108/2011 c/w.Crl.R.P.No.392/2013

under Section 378 of the Cr.P.C., since the complainant once

again initiated and proceeded on revision under Section 397 of

the Cr.P.C., instead of an appeal under Section 378(4) of the

Cr.P.C., and more importantly, much time has been taken by the

petitioner in his attempt claiming that he would convince the

Court in the light of the judicial precedents that, the present

revision petitions are maintainable, I am of the view that, by

imposing cost, the prayer of the learned counsel for the

petitioner for withdrawal of these two revision petitions with

liberty to file criminal appeals be allowed.

Accordingly, both these revision petitions stand disposed

of, however, on a cost of `10,000/- (Rupees Ten Thousand

Only) in total payable by the revision petitioner before the

registry of this Court, within ten days from today.

Subject to payment of cost as ordered above, the

impugned judgments of acquittal passed by the learned FTC-VII

in Criminal Appeal No.868 of 2010 dated 30-07-2011 and by the

learned FTC-XIII in Criminal Appeal No.870/2010 dated

22-01-2013, are set aside.

The complainant/ revision petitioner is at liberty to

challenge the impugned judgment of acquittal passed by the Crl.R.P.No.1108/2011 c/w.Crl.R.P.No.392/2013

learned Trial Court by preferring criminal appeals under

Section 378(4) of the Cr.P.C. before this Court within three

weeks from today. In such an event, the benefit of Section 14 of

the Limitation Act be made available to the revision petitioner.

Registry to transmit a copy of this order to the Trial Court

and to the FTC-VII and FTC-XIII along with their respective

records forthwith.

Sd/-

JUDGE

BMV*