Karnataka High Court
Pasha Khan vs G N Devaraj on 2 August, 2023
Bench: Rajendra Badamikar
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NC: 2023:KHC:26897
CRL.RP No. 612 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR
CRIMINAL REVISION PETITION NO. 612 OF 2019
BETWEEN:
PASHA KHAN @ PACHA KHAN,
S/O. M.A. ANWAR KHAN,
AGED ABOUT 37 YEARS,
GENERAL AND VEGETABLE MERCHANT,
MASJID ROAD, MAIN ROAD,
TANK MOHALLA , SHIVAMOGGA,
R/O BEHIND POPULAR RICE MILL,
HONNALI ROAD,
SHIVAMOGGA - 577 201.
...PETITIONER
(BY SRI. RAVINDRA B.DESHPANDE, ADVOCATE)
AND:
G.N. DEVARAJ,
Digitally S/O. NARASIMHAIAH,
signed by AGED ABOUT 43 YEARS,
RENUKAMBA OCC: AGRICULTURIST,
KG R/O. HOSALLI LAKSHMIPURA VILLAGE,
SHIVAMOGGA TALUK AND DISTRICT - 577 201.
Location: High ...RESPONDENT
Court of (BY SRI. N.DEVARAJ, ADVOCATE;
Karnataka RESPONDENT IS SERVED)
THIS CRL.RP IS FILED U/S.397 R/W 401 OF CR.P.C
PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF
CONVICTION AND SENTENCE DATED 19.02.2019 PASSED BY
THE II ADDITIONAL SESSIONS JUDGE, SHIVAMOGGA IN
CRL.A.NO.271/2013 (CONVICTED FOR THE OFFENCE P/U/S 138
N.I ACT) AND CONFIRM THE JUDGMENT AND ORDER OF
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CRL.RP No. 612 of 2019
ACQUITTAL DATED 05.10.2013 PASSED BY THE II ADDITIONAL
CIIVL JUDGE AND JMFC, SHIVAMOGGA IN C.C.NO.2505/2009
AND ACQUIT THE PETITIONER/ACCUSED OF CHARGES
LEVELED AGAINST HIM.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
Heard learned counsel for the revision petitioner.
2. This revision petition is filed by the revision
petitioner/accused under Section 397 read with Section
401 of Cr.P.C. challenging the judgment of conviction and
order of sentence passed in Crl.A.No.271/2023 on the file
II Additional Sessions Judge, Shivamogga.
3. The brief factual matrix leading to the case are
that the complainant/respondent herein filed a complaint
under Section 200 of Cr.P.C. against the accused/revision
petitioner herein for the offence punishable under Section
138 of N.I. Act.
4. After the trial, the Trial Court has acquitted the
accused for the aforesaid offence by exercising the powers
under Section 255(1) of Cr.P.C.
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CRL.RP No. 612 of 2019
5. Being aggrieved by this judgment of acquittal,
the complainant has preferred Crl.A.No.271/2013 before II
Additional Sessions Judge, Shivamogga, who has
convicted the accused by setting aside the judgment of
acquittal passed by the Trial Court. This order is being
challenged in this revision.
6. Heard the learned counsel for the revision
petitioner. The respondent though served is
unrepresented.
7. The main contention of the revision petitioner is
that the lower appellate Court has committed error in
entertaining the appeal as it has no jurisdiction to
entertain the appeal and the appeal ought to have been
filed before this Court under Section 378(4) of Cr.P.C.
Hence, he would contend that the judgment of conviction
and order of sentence passed by the lower Appellate Court
is not sustainable.
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CRL.RP No. 612 of 2019
8. Having heard the arguments and perused the
records. It is evident that a private complaint is filed
under Section 200 of Cr.P.C. by the complainant alleging
that accused/revision petitioner herein has committed the
offence under Section 138 of N.I. Act. After trial, the
learned Magistrate has acquitted the accused and
Appellate Court (Sessions Judge) in appeal convicted the
accused which is challenged in this revision.
9. Section 378 of Cr.P.C. deals in respect of appeal
in case of acquittal and sub-Clause (4) of the said Section
reads as under:
"(1) ......
(2) ......
(3) ......
(4) If such an order of acquittal is passed
in any case instituted upon complaint and
the High Court, on an application made
to it by the complainant in this behalf,
grants special leave to appeal from the
order of acquittal, the complainant may
present such an appeal to the High Court.
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CRL.RP No. 612 of 2019
10. Hence, as per Section 378(4) of Cr.P.C, the
appeal ought to have been filed before this court, but
erroneously, the learned Sessions Judge has entertained
the appeal though he had no jurisdiction. At the same
time, it was the duty of the learned Sessions judge to
return the appeal memo for presentation before the
appropriate Court. But instead of returning the appeal
memo, it deposed of the appeal on merits and as such,
the judgment passed by the lower Appellate Court does
not survive for consideration. At the same time, it is
evident that the accused/revision petitioner has also not
raised any objection regarding the jurisdiction of the lower
Appellate court.
In that view of the matter, the matter needs to be
remanded to the learned Sessions Judge with a direction
to proceed in accordance with law under Section 378(4) of
Cr.P.C, by returning the appeal memo to the complainant
for presentation before the appropriate Court. As such, I
proceed to pass the following;
NC: 2023:KHC:26897
CRL.RP No. 612 of 2019
ORDER
i) The revision petition is allowed.
ii) The impugned judgment of conviction and
order of sentence passed by the II
Additional Sessions Judge, Shivamogga in
Crl.A.No.271/2023 dated 19.02.2019 is
set aside.
iii) The matter is remanded to learned
Sessions Judge with a direction to restore
the appeal to its original file and pass
appropriate order under Section 378(4)
of Cr.P.C, by returning the appeal memo
for presenting before the appropriate
Court.
iv) The amount deposited shall be remitted
to the Appellate Court.
Sd/-
JUDGE
