Karnataka High Court
Sri Smith Ollukaran Joseph vs Sri R Venkatesh on 31 May, 2021
Author: K.Somashekar
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 31ST DAY OF MAY, 2021
BEFORE
THE HON'BLE MR.JUSTICE K.SOMASHEKAR
CRIMINAL APPEAL NO. 604 OF 2021
BETWEEN:
Sri. Smith Ollukaran Joseph
S/o O.L. Joseph
Aged about 44 years
R/at No.44/1, 8th Cross
Swimming Pool Extension
Malleswaram
Bengaluru - 560003.
...Appellant
(By Sri. Madhusudhan .N, Advocate for
Smt. T.R. Rajeshwari - Advocate)
AND:
Sri. R. Venkatesh
S/o A. Ramana
Aged about 42 years
R/at No.34, 'E' Main, 4th Cross
Muneshwara Block
Near Makalamaramma Temple
Palace Guttahalli
Malleswaram
Bengaluru - 560 003.
...Respondent
2
This Criminal Appeal is filed under Section 377 of
Cr.P.C praying to set aside the impugned judgment
dated 29.02.2020 passed by the XIII-Addl. Chief
Metropolitan Magistrate, Bangalore in
C.C.No.23051/2017 and consequently convict the
respondent for the offence punishable under Sec.138 of
N.I. Act.
This Criminal Appeal coming on for Orders,
through video conference this day, the Court delivered
the following:
JUDGMENT
Learned counsel Shri Madhusudan N. appears for
the appellant through video conferencing and
represents the counsel Smt. T.R. Rajeshwari who is on
record for the appellant.
2. This appeal is filed by Sri. Smith Ollukaran
Joseph who is the appellant herein challenging the
judgment of conviction and order of sentence rendered
by the Trial Court in C.C.No.23051/2017 dated
29.02.2020 whereby the accused is convicted for
offences punishable under Section 138 of the NI Act,
which is incorporated in the operative portion of the
order. The appellant herein has initiated the present
appeal being aggrieved by the order dated 29.02.2020
passed by the Trial Court in C.C.No.23051/2017 partly
convicting the appellant for offences under Section 138
of the NI Act and sentencing him to pay a fine of
Rs.1,00,000/-.
3. When once the conviction judgment has been
rendered by the Trial Court, it is the jurisdiction vested
with the next appellate court to entertain an appeal.
But the appellant without approaching the next
appellate court, has approached this court challenging
the judgment of conviction and order of sentence for
offences under Section 138 of the NI Act.
4. Hence, the office has raised an objection
regarding maintainability of the present appeal before
this court. Hence, the question of maintainability of the
present appeal before this court is the moot point for
consideration in the present appeal.
The appellant in the first instance, ought to have
challenged the judgment of conviction and order of
sentence before the jurisdictional court having power or
domain to entertain the appeal, since the present appeal
would only be maintained before the next jurisdictional
appellate court and not before this court.
5. Hence, the learned counsel for the appellant
seeks to withdraw this appeal with liberty to approach
the jurisdictional appellate court in accordance with the
relevant provisions of the Cr.P.C. He further submits
that the delay which has occurred by the appellant not
approaching the jurisdictional appellate court at the
first instance, may be condoned.
6. The submission made by the learned counsel is
placed on record. The appellant is permitted to
withdraw the appeal as not pressed. Consequently, the
learned counsel for the appellant is permitted to file the
said appeal before the jurisdictional First Appellate
Court having jurisdiction to entertain the appeal at the
first point of time for the offences punishable under
Section 138 of the NI Act. If the appellant files
necessary application in accordance with law seeking
condonation of delay, the same may be considered by
the said court, in accordance with law.
7. Accordingly, the appeal is disposed of.
8. Registry is directed to return the entire appeal
papers to the appellant with due identification, for him
to approach the First Appellate Court having
jurisdiction to deal with this matter.
Sd/-
JUDGE
KS
