Mrs K Rajeshwari Jyothi vs Mr R B Muniyappa
2022 Latest Caselaw 3708 Kant

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 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 4TH DAY OF MARCH 2022

                       BEFORE

        THE HON'BLE MR. JUSTICE H.P.SANDESH

    CRIMINAL REVISION PETITION No.1054/2019

BETWEEN:

MRS. K RAJESHWARI JYOTHI
W/O LATE RAVIKUMAR
AGED ABOUT 52 YEARS
RESIDING AT NO.122
KAMALASHREE NILAYA
5TH 'A' CROSS, MEDARAHALLI
CHIKKABANAVARA POST
BENGALURU - 560 090.
                                        ...PETITIONER
(BY SRI HEMANTH S, ADVOCATE)

AND:

MR. R B MUNIYAPPA
S/O BYRAPPA
AGED ABOUT 44 YEARS
RESIDING AT GURUSHANESHWARA
TEMPLE, PIPELINE ROAD
BHUVANESHWARI NAGAR
T DASARAHALLI
BANGALORE - 560 057.
                                       ...RESPONDENT
(BY SRI. C R VENKATESH, ADV.)

     THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 R/W SECTION 401 OF CR.P.C., PRAYING TO
SET ASIDE THE JUDGMENT DATED 17.05.2018 IN
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C.C.NO.16407/2017, PASSED BY THE XX ACMM, AT
BENGALURU CITY (ANNEXURE-A) AND ORDER DATED
07.06.2019 IN APPEAL NUMBER 1088/2018 PASSED BY THE
60TH ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AT
BENGALURU (ANNEXURE-B)

    THIS CRIMINAL REVISION PETITION COMING ON FOR
ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:

                           ORDER

This matter is listed for admission today and heard the

respective counsels.

2. Learned counsel appearing for the revision

petitioner would submit that no opportunity has been given

before the trial Court to lead defence evidence and hence, an

application is filed before the appellate Court invoking the

provisions under Section 391 of Cr.P.C., to produce additional

documents i.e., copy of the complaint and no findings was

given by the appellate Court regarding application filed under

Section 391 of Cr.P.C.,

3. Having heard the learned counsel for the

petitioner and respondent, the learned counsel for

respondent brought to the notice of this Court that when the

matter was posted for defence evidence, this petitioner took

time and thereafter not led evidence and learned counsel

also not disputed the fact that application is filed before the

appellate Court under Section 391 of Cr.P.C.,

4. A perusal of order sheet indicates that an

application was filed on 02.04.2019 under Section 391 of

Cr.P.C., and the same was orally objected by the respondent.

The appellate Court heard both the sides and passed the

impugned order. A perusal of the impugned order dated

07.06.2019 indicates that no points for consideration is

framed by the appellate Court except the point for

consideration "whether the Court below erred in not properly

appreciating the defence set up by the accused and also

whether the trial Court has committed an error in convicting

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

Act and is there any grounds to interfere with the order of

conviction and sentence". On perusal of the findings, it is

seen that nothing is discussed with regard to filing of an

application under Section 391 of Cr.P.C., by the appellate

Court and when an application is filed it is the duty of the

appellate Court to consider whether the application is

deserves to be allowed or not and whether grounds are made

out or not but nothing has been discussed by the appellate

Court. Hence, it requires interference of this Court to set

aside the order passed by the appellate Court and remand

the matter for consideration of application invoking under

Section 391 of Cr.P.C., However, it is noticed by this Court

that the revision petitioner herein has not utilized the

opportunity when the case was set down for defence

evidence before the trial Court and also on perusal of order

sheet, the matter was adjourned at the request of petitioner

herein to lead defence evidence and subsequently has not led

any evidence. The Court also take note of conduct of the

revision petitioner. Hence, it is a fit case to impose the cost

upon the petitioner since he has not availed the opportunity

given to him to lead evidence and instead of leading

evidence, first time raised the ground and the appellate Court

has not given any findings on the application under Section

391 of Cr.P.C. Hence, I pass the following :

:ORDER:

Revision petition is allowed.

I. The impugned order passed by the appellate Court in Crl.A.No.1088/2018 is set aside.

II. The matter is remanded to the appellate Court to consider the application filed under Section 391 of Cr.P.C, filed by the revision petitioner herein and pass an order within two months from today.

III. Revision petitioner is directed to pay cost of Rs.25,000/- to the complainant/respondent forthwith. On deposit only the appellate Court to consider the matter and pass an order on application under Section 391 of Cr.P.C., along with merits on appeal.

IV. The registry is directed to communicate this order to the appellate court forthwith to enable the court to dispose of the matter within the stipulated time.

Sd/-

JUDGE

NMS