Smt Vinaya S Shetty vs M/S Makara Jyothi Chits Pvt Ltd
2022 Latest Caselaw 355 Kant

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

    DATED THIS THE 10th DAY OF JANUARY, 2022

                         BEFORE

 THE HON'BLE MR.JUSTICE SREENIVAS HARISH KUMAR

   CRIMINAL REVISION PETITION No.1315/2021

BETWEEN:

  SMT VINAYA S SHETTY
  AGED ABOUT 46 YEARS,
  W/O K SATHISH SHETTY,
  SRI GANESH DRIVING SCHOOL,
  DEVU PLZA,
  GROUND FLOOR,
  KADRI TEMPLE ROAD,
  MANGALURU 575002
                                          ... PETITIONER
(By SRI AJAY PRABHU M., ADVOCATE)

AND:

  M/S MAKARA JYOTHI CHITS PVT. LTD.,
  A PRIVATE LIMITED COMPANY
  HAVING ITS REGISTERED OFFICE AT
  1ST FLOOR, ADONE TOWERS
  KANAKANADY
  MANGLAURU 575002

  REP. BY ITS DIRECTOR
  ANTHARAGUTHU
  SURESH RAI,
  S/O NARAYANA RAI
  R/AT SUKH SAGAR
  APARTMENTS
  NEAR S C S HOSPITAL
  MANGALURU 575002.
                                       ... RESPONDENT
  (BY SRI. DEVARAJA A., ADVOCATE)
                            2




     THIS CRL.RP FILED U/S.397 R/W 401 CR.P.C PRAYING
TO SET ASIDE THE IMPUGNED JUDGMENT DATED 24.08.2021
IN CRL.A.NO.20/2021 ON THE FILE OF VI ADDITIONAL
DISTRICT AND SESSIONS JUDGE, MANGALURU D.K., THEREBY
DISMISSING THE APPEAL FILED BY THE PETITIONER AND
CONFIRMING JUDGMENT OF CONVICTION AND SENTENCE
DATED 18.01.2021 IN C.C.NO.114/2014 ON THE FILE OF THE
COURT OF V ADDITIONAL CIVIL JUDGE AND JMFC,
MANGALURU D.K., AND CONSEQUENTLY ALLOW APPEAL.


     THIS CRL.RP COMING ON FOR ADMISSION, THIS DAY,
THE COURT MADE THE FOLLOWING:


                      ORDER

Heard the learned counsel for the petitioner and

the respondent at the time of admission.

2. The petitioner has challenged the judgment

dated 24.8.2021 passed by the VI Additional District &

Sessions Judge, D.K., Mangaluru, in Crl. Appeal

No.20/2021.

3. The petitioner is an accused in

C.C.No.114/2014 in a proceeding under section 138 of

the Negotiable Instruments Act. The respondent herein

is the complainant before the Magistrate. Since the

petitioner came to be convicted and sentenced for the

offence under section 138 of the Negotiable Instruments

Act, he preferred an appeal to the Sessions Act. He also

made an application seeking suspension of sentence.

The Appellate Court, on 25.2.2021 while passing the

order suspending the sentence subjected the petitioner

to certain conditions, one of which being that he should

deposit 20% of the fine amount before the Trial Court

within 60 days. Pursuant to this order of the Appellate

Court, the petitioner made the deposit of Rs.92,000/-

through Demand Draft No.187204 dated 21.4.2021. It

appears that the petitioner did not bring to the notice of

the Appellate Court about the deposit made before the

Trial Court. Therefore, on 24.8.2021 when the

Appellate Court passed the judgment, it did not

consider the merits of the case and noticing that deposit

had not been made in compliance of its order, dismissed

the appeal. Therefore, the present revision petition

before this court.

4. It is submitted by the counsel for the

petitioner that in fact the petitioner made deposit on

22.4.2021. Because of the COVID restrictions, he could

not appear before the court and file a memo in regard to

deposit having been made. Moreover, because of the

SOP, the Appellate Court could not have dismissed the

appeal. The petitioner, who has got a good case on

merits, has been denied of an opportunity to put forth

his contentions in the appeal and therefore this revision

petition deserves to be allowed and remanded to the

Appellate Court for disposal on merits.

5. Learned counsel for the respondent opposes

this petition by submitting that when the petitioner

failed to comply with the directions of the Appellate

Court, the petitioner looses his right to prosecute the

appeal and rightly the Appellate Court came to the

conclusion to dismiss the appeal.

6. If the impugned judgment is perused, it

becomes clear that the Appellate Court dismissed the

appeal only for the reason that the petitioner failed to

comply with its directions. But the petitioner has filed a

memo along with the certified copy of the order sheet of

the proceeding in C.C.No.114/2014. It shows that on

22.4.2021 the petitioner made deposit of Rs.92,000/-

through Demand Draft. Most probably, the petitioner

could not report to the Appellate Court about the

compliance being made and this resulted in dismissal of

the appeal. In fact it was necessary that the petitioner

ought to have brought to the notice of the Appellate

Court about the compliance. But according to the

petitioner, he could not appear before the court because

of the COVID restrictions. In the memorandum of

revision petition one of the grounds taken by the

petitioner is with regard to SOP issued by this Court on

22.6.2021. SOP required that if any party would

remain absent on the day fixed for hearing, the Court

may in its discretion issue Court notice to such party.

According to the petitioner, he did not receive any notice

from the Appellate Court. Anyway, as the records show

that the petitioner made deposit on 22.4.2021 within 60

days from the date the Appellate Court passed the order

of suspending the sentence, the interest of the petitioner

should not suffer. Therefore, I am of the opinion that

the petitioner has made out a good ground for allowing

this revision petition. Accordingly, the following:

ORDER

1. The petition is allowed. The impugned judgment dated 24.8.2021 in Criminal Appeal No.20/2021 on the file of the VI Additional District & Sessions Judge, D.K., Mangaluru, is set aside and the matter is remanded to the Appellate Court for deciding the Criminal Appeal No.20/2021 on merits in accordance with law.

2. The amount that the petitioner has deposited pursuant to the order of this Court dated 4.12.2021 shall remain in deposit with

the Trial Court till the appeal is decided on merits.

       3.    The     respondent      has      entered
       appearance in    this revision petition and
       therefore the petitioner     and           the

respondent are directed to appear before the Appellate Court on 01.02.2022 without expecting a further notice from the Appellate Court.

Sd/-

JUDGE

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