N. Yogesh vs Smt. Anjali K Reddy
2022 Latest Caselaw 2236 Kant

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 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 11TH DAY OF FEBRUARY, 2022

                           BEFORE:

         THE HON'BLE MR. JUSTICE V.SRISHANANDA

   CRIMINAL REVISION PETITION NO.1514 OF 2019

BETWEEN:

N. YOGESH,
S/O. LATE S.NARAYANA REDDY,
AGED ABOUT 48 YEARS,
R/AT NO.8, 1ST 'B' CROSS, 20TH MAIN,
BTM FIRST STAGE,
BANGALORE - 560 029.                       ...    PETITIONER
[BY SRI. ANIL KUMAR B.S., ADVOCATE]

AND:

SMT. ANJALI K. REDDY,
W/O. M. KRISHNA REDDY,
AGED ABOUT 64 YEARS,
R/AT NO.576-A, 1ST 'A' MAIN,
6TH SECTOR, HSR LAYOUT,
BANGALORE - 560 102.                       ...   RESPONDENT

[BY SRI. G.M. SRINIVASA REDDY, ADVOCATE]
                           ***
      THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 OF CR.P.C., PRAYING TO SET ASIDE THE IMPUGNED
ORDER OF CONVICTION, DATED 05.08.2017 PASSED IN C.C.
NO.26341/2014 ON THE FILE OF THE XIX ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE COURT, BANGALORE AND FURTHER
SET ASIDE THE JUDGMENT PASSED BY THE HON'BLE LXVII
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE COURT,
BENGALURU IN CRL.A. NO.135/2018 VIDE ITS JUDGMENT DATED
18.09.2019 AND THEREBY ACQUIT THE PETITIONER BY ALLOWING
THIS REVISION PETITION.

      THIS CRIMINAL REVISION PETITION COMING ON FOR
ADMISSION, THROUGH VIDEO CONFERENCE/PHYSICAL HEARING,
THIS DAY THE COURT MADE THE FOLLOWING:
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                             ORDER

Heard Sri. Anil Kumar B.S., learned counsel for the

revision petitioner i.e., accused in C.C. No.26341/2014.

2. The brief facts of the case are as under:

A complaint came to be filed by the respondent

herein against the revision petitioner in P.C.R.

No.9893/2014. After completing necessary formalities,

the said case was tried as C.C. No.26341/2014. When

the matter was pending for adjudication, a joint

application came to be filed under Section 147(2) of

Cr.P.C. [(sic.) Negotiable Instruments Act]. The said

application reads as under:

"It is submitted that the matter has been amicably settled between the complainant and the accused out of Court for a sum of Rs.8,00,000/- (Rupees Eight Lakhs only), out of the cheque amount of Rs.10,00,000/- and the accused agreed/undertake to pay the said agreed amount of Rs.8,00,000/- to the complainant in the following instalment basis:

1) On 19-08-2017 the accused has agreed to pay a sum of Rs.50,000/- to the complainant.

2) On 20-09-2017 the accused has agreed to pay a sum of Rs.1,00,000/- to the complainant.

           3)     On 23-10-2017 the accused has agreed
                  to    pay   the      balance/final   instalment
                  amount      of       Rs.6,50,000/-    to   the
                  complainant.

for which the complainant also agreed for the same.

In case if any default made in the payment of any one of the instalment amount in time by the accused as per this Application, this Hon'ble Court be pleased to pass necessary orders as per law.

Hence it is prayed for pass orders accordingly as per Joint Memo."

The learned trial Magistrate after verifying the joint

application and satisfying about the contents of the joint

application, allowed the application vide Order dated

05.08.2017, which reads as under:

"Order on application U/s 147 of N.I. Act.

The complainant and accused filed application U/s 147 of N.I. Act, stating that they have compromised the case. They have voluntarily stated that they have compromised the matter in terms of compromise petition. Perused the application. It is valid and legal and the same is accepted. Hence the following:

ORDER

Application U/s 147 of N.I. Act is allowed.

             The    matter       has       been    disposed    off     as
     compromised."

However, surprisingly, the accused preferred an appeal,

belatedly, against the aforesaid order in Crl.A.

No.135/2018. The said appeal was contested and by

Judgment dated 18.09.2019, the said appeal came to be

dismissed. Being aggrieved by the same, the present

revision petition has been filed by the accused on the

following grounds:

"1. The impugned judgments and orders are not sustainable either in law or on facts of this case and it is against to the procedure available under the Code of Criminal Procedure, 1973.

2. The Courts below have failed to ascertain the legally recoverable debt towards the cheque in question based on the documentary proof placed by the Respondent.

3. The Courts below have failed to ascertain the legally recoverable debt as against the cheque in question and voluntarily issuance of the same while disposal of the Complaint/Appeal through its final order.

4. The Trial court has failed to disclose the contents of terms to the Accused/Petitioner, while receiving the Application Under Section 147 of Code of Criminal Procedure and consequences of the same and the same was not appreciated or distinguished in any manner even though there is an allegation of fraud and cheating by the Appellant Court, while disposal of Appeal preferred by the Petitioner.

5. The final order reaches on the fraud, collusion misrepresentation to the Petitioner/Accused through his own previous counsel, Complainant and her husband and the said fact was not yet looked into the manner by the Appellant court in its impugned Judgment.

6. The trial court pronounces the impugned final order in the absence of Accused/Appellant on 05.08.2017 before the Lok Adalath and it is not bears the signature of conciliator of the Lok

Adalath and as such it is against to the natural justice and it is not yet ascertained by the Appellant Court, while disposal of Appeal on its hand.

7. The Courts below fail to ascertain the pleadings of Complaint/Respondent and legal liability of the cheque in question, while passing the impugned final order/Judgment in question and the Courts below fail to ascertain the correctness and genuinely of the contents of cheque in question, legally recoverable debt and legal requirement of service of notice on verification of available records.

8. Admittedly, the trial court is not yet disposed the complaint on merits but it is disposed on Application under Section 147 of Code of Criminal Procedure, without consent and disclosing the contents of compromise to the Accused/Petitioner and the Appellate Court fails to appreciate the same on verification of records and as such the impugned final order/Judgment requires to be set aside.

9. The Courts below have failed to appreciate the denial of allegations as against the Petitioner/Accused in connection with the legally recoverable debt, cheque in question and existence of the same, while recording plea before the trial court.

10. The Courts below have committed the error in its final order/Judgment without disclosing and or ascertaining the admission of liability towards the cheque in question or consequences of the same to the Accused/Petitioner.

11. The Courts below have failed to appreciate the law in question relating to the Provisions of Section 147 of the Negotiable Instruments Act, in the absence of documentary proof relating to the liability towards the cheque in question.

12. The impugned final order/Judgment suffers from various irregularities and as such it is not sustainable either in law or facts of this case. The impugned order and the Judgment are contrary to law, procedure and evidence available on record and therefore, the Impugned judgment and final order are illegal and incorrect in any angle and the same requires to be set aside.

13. The Courts below have committed the grave error in acceptance of Application without disclosing the consequences of the same to the Accused on verification of records/pleadings and acting upon the same without consent of Petitioner/Accused, which is not admissible under eye of law.

14. The order of courts below based on the Mechanical method, imaginary and presumption

of law, which cannot be exercised unless establishing the legally recoverable debt towards the cheques in question.

15. The Courts below have failed to follow up the irregularities and divergent consequences of orders passed against the Petitioner."

3. Re-iterating the above grounds, Sri. Anil

Kumar B.S., learned counsel for the revision petitioner

vehemently contended that both the Courts have

wrongly passed the impugned Judgments and Orders,

resulting in miscarriage of justice and sought for allowing

the revision petition.

4. This Court in the light of the arguments put-

forth by the revision petitioner, perused the records.

The learned counsel for the revision petitioner submits

that there was no legally recoverable debt and he has

also drawn the attention of this Court to the civil

proceedings in O.S. No.4162/2014. This Court perused

the grounds urged in the revision petition and also

perused the Judgment and Decree dated 18.12.2015

passed in O.S. No.4162/2014. All these grounds of the

revision petitioner are to be appreciated. There was no

necessity for the revision petitioner to file a joint

application under Section 147(2) of the Negotiable

Instruments Act. The revision petitioner was represented

by an advocate who has also signed the joint application.

Being satisfied about the genuineness in filing the joint

application, the jurisdictional Magistrate has disposed of

the criminal case in terms of the joint application.

5. Surprisingly, almost a year belatedly i.e., on

29.01.2018, Crl.A. No.135/2018 came to be filed. The

learned Judge in the first appellate Court took note of the

appeal grounds and dismissed the appeal.

6. It is alleged by the revision petitioner that

there was an active collusion between the advocate of

the accused and the advocate of the complainant in filing

the joint application under Section 147(2) of the

Negotiable Instruments Act and the accused was mislead

by his advocate stating that the said application is filed

seeking recall of the non-bailable warrant and the

revision petitioner gullibly believed his advocate and

signed the joint application. The learned Judge in the

first appellate Court considered the said grounds and

recorded a categorical finding that the contentions urged

on behalf of the revision petitioner is far from truth as

the revision petitioner is working as a Junior Assistant in

S.G. Engineering, which is a Power Coating Works at

Hosur Main Road, Bengaluru and he is a literate person

who could not misled by his counsel so easily.

7. This Court meticulously considered the

revision grounds. Additionally, the revision grounds are

nothing but reiteration of the appeal grounds. When a

duly constituted Court has already gone into the

contentions urged on behalf of the revision petitioner and

has negated the case of the revision petitioner, this

Court in view of limited scope of the revision jurisdiction,

cannot entertain the very same grounds in allowing the

prayer of the revision petitioner. Suffice to say that if

the counsel who was engaged by the revision petitioner

in the trail Court has misled the revision petitioner,

remedy lies elsewhere. With these observations, pass

the following:

ORDER

Revision grounds are meritless and therefore,

admission is declined. Consequently, the revision petition

is dismissed.

In view of dismissal of the revision petition, I.A.

No.1/2019 does not survive for consideration and

accordingly disposed of.

Sd/-

JUDGE

Ksm*