Mrs.Swati Sanjay Revankar vs Mrs.Asha Jayawant More
2021 Latest Caselaw 2881 Kant

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             IN THE HIGH COURT OF KARNATAKA
                     DHARWAD BENCH

          DATED THIS THE 20TH DAY OF JULY 2021

                            BEFORE

            THE HON'BLE MRS.JUSTICE M.G.UMA


                     CRL.P. NO.101713/2019

BETWEEN

MRS.SWATI SANJAY REVANKAR,
AGE: 42 YEARS, OCC BUSINESS,
R/O: PLOT NO.56,
NEAR MAHAVEER BHUVAN,
HINDWADI, BELAGAVI.
                                               .....PETITIONER
(BY SRI K L PATIL, ADV.)

AND

MRS.ASHA JAYAWANT MORE,
AGE: 55 YEARS, OCC: BUSINESS,
R/O: FLAT NO.405 AND 406,
"A" WING, SADASHEELA APARTMENT,
OPP. BUDA OFFICE, MAHANTESH NAGAR,
BELAGAVI.
                                              .....RESPONDENT
(BY SRI VITTHAL S. TELI, ADV.)

      THIS CRIMINAL PETITION IS FILED U/S 482 OF CR.P.C.
SEEKING TO ALLOW THIS PETITION AND QUASH THE ORDER DATED
13.08.2019 PASSED BY THE X-ADDL. DIST. & SESSIONS JUDGE,
BELAGAVI, IN CRL.A.NO.196/2019, FOR THE OFFENCES P/U/S 138 OF
NI ACT.
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     THIS PETITION COMING ON FOR ADMISSION, ON THIS DAY,
THE COURT MADE THE FOLLOWING:

                                ORDER

Though the matter is listed for admission, with the consent

of learned counsel for parties, it is taken up for final disposal.

2. Petitioner/complainant is before this Court seeking to

quash the impugned order dated 13.08.2019, passed by the

learned X Addl. District and Sessions Judge, Belagavi, (for short,

'Appellate Court') in Crl.A.No.196/2019 for the offence

punishable under Section 138 of the Negotiable Instruments Act,

1881 (for short, 'N.I. Act') wherein I.A.No.II filed by the accused

is allowed and its order dated 15.05.2018, is modified while

suspending the sentence dated 12.04.2018, passed in

C.C.No.502/2017 before the learned IX J.M.F.C., Belagavi, (for

short, 'trial Court').

3. For the sake of convenience, the parties in this

petition are referred to as per their status and ranking before the

trial Court.

4. Brief facts of the case are that the petitioner herein

as complainant filed the private complaint against the

respondent/accused, alleging commission of offence punishable

under Section 138 of the N.I. Act. The trial Court took

cognizance of the offence, registered the criminal case in

C.C.No.502/2017 and summons was issued to the accused to

appear before the Court. The accused appeared before the trial

Court. After holding trial, the trial Court convicted the accused

for the offence punishable under Section 138 of the N.I. Act

sentencing the accused to pay fine of Rs.3,000/- and in default

to pay fine, to undergo simple imprisonment of three months.

She was also directed to pay compensation of Rs.25,50,000/-

and in default to pay compensation, to undergo simple

imprisonment for two years.

5. The accused challenged the impugned judgment of

conviction and order of sentence passed by the trial Court by

preferring the appeal in Crl.A.No.196/2018 before the learned

Appellate Court. The accused has moved an application seeking

suspension of sentence, passed in C.C.No.502/2017. The said

application was came to be allowed by the Appellate Court, vide

order dated 15.05.2018, suspending the execution and operation

of the impugned order of sentence, subject to the condition that

the accused shall deposit 20% of the compensation amount

within one month, before the trial Court. It is stated that the

said order passed by the Appellate Court was called in question

by the accused before this Court in Crl.P.No.101047/2018, which

was came to be dismissed vide order dated 10.04.2019.

6. It is said that the Appellate Court passed the

impugned order dated 13.08.2019 allowing I.A.No.2 filed under

Section 424, read with Section 389 of Cr.P.C. and modified the

order dated 15.05.2018, permitting release of the accused on

deposit of the entire fine amount of Rs.3,000/-. This order dated

13.08.2019, passed by the Appellate Court, is under challenge

before this Court.

7. Heard Sri K.L. Patil, learned counsel for petitioner

and Sri Vitthal Teli, learned counsel for respondent.

8. Learned counsel for petitioner submitted that when

the order dated 15.05.2018 passed by the Appellate Court was

called in question before this Court, by filing Crl.P.

No.101047/2018 and the said petition was already dismissed by

this Court, the Appellate Court could not have modified its order

dated 15.05.2018. Therefore, he prays for allowing the petition

and to set aside the impugned order passed by the Appellate

Court.

9. Per contra, learned counsel for respondent submits

that the finding of this Court vide order dated 10.04.2019 may

not be correct, in view of the decision of the Hon'ble Apex Court

and the Appellate Court considered the same and modified its

order. He further submitted that the complainant is dragging on

the matter before the Appellate Court and he is not addressing

the argument. The appellant/accused is ready to address his

argument before the Appellate Court and to get the final verdict.

On these submissions, he prays for passing appropriate orders.

10. Perused the materials on record.

11. In the light of the rival submissions, the point that

would arise for my consideration is,

"Whether the impugned order is liable to be set aside?"

12. My answer to the above point is in the 'affirmative'

for the following:

REASONS

13. The impugned judgment of conviction and order of

sentence passed by the trial Court was called in question by the

accused before the Appellate Court. She had also filed an

application seeking suspension of sentence. The said application

was allowed subject to condition that she shall deposit 20% of

the compensation amount ordered by the trial Court, which was

again challenged before this Court, by filing Crl.P.

No.101047/2018 by the accused.

14. It is not in dispute that the said petition came to be

dismissed upholding the order dated 15.05.2018. However,

again on 13.08.2019, the Appellate Court passed the impugned

order modifying its earlier order dated 15.05.2018. The short

question that is to be considered is, whether the order passed by

the Trial Court on 15.05.2018 could be modified when already

the said order is confirmed by this Court in Crl.P.

No.101047/2018. Even though learned counsel for respondent

contended that the finding given by this Court while disposing of

the Crl.P.No.101047/2018 is not the correct law, admittedly, the

said Criminal Petition was disposed of by the Coordinate Bench

of this Court. The accused has not challenged the said order

passed by this Court, dismissing the criminal petition. This Court

is not sitting in appeal against the dismissal of the criminal

petition. As the facts and circumstances of the case stand, the

Appellate Court modified its earlier order, after the same has

been confirmed by this Court, which is not proper and cannot be

upheld. Under such circumstances, the criminal petition

deserves to be allowed. Accordingly, I answer the above appoint

in the affirmative and proceed to pass the following:

ORDER

The Criminal petition is allowed.

The impugned order dated 13.08.2019, passed by the

learned X Addl. District and Sessions Judge, Belagavi, in

Crl.A.No.196/2019, for the offence punishable under Section 138

of the Negotiable Instruments Act, 1881 is set aside.

The Appellate Court is directed to expedite the hearing of

the appeal and dispose of the same at the earliest, under any

circumstances, within three months from this day.

Sd/-

JUDGE

Naa