Vuppalapati Satish Kumar vs Vth Source Components Pvt Ltd
2023 Latest Caselaw 1288 Kant

                           1


                                                             R
  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 14TH DAY OF FEBRUARY 2023

                         BEFORE

          THE HON'BLE MR. JUSTICE K.NATARAJAN

           CRIMINAL PETITION NO.991 OF 2023

BETWEEN

VUPPALAPATI SATISH KUMAR
S/O V. V. RAMA RAO
AGED ABOUT 47 YEARS
DIRECTOR,
M/S PRITHVI INFORMATION SOLUTIONS LTD
R/O PLOT NO.1235, ROAD NO.60
JUBILEE HILLS
HYDERABAD
                                            ... PETITIONER
(BY SRI SANDESH J. CHOUTA, SENIOR COUNSEL
 FOR SRI KRISHMA NEDUNGADI, ADVOCATE)

AND

VTH SOURCE COMPONENTS PVT. LTD.
A COMPANY INCORPORATED UNDER
THE COMPANIES ACT 1956
HAVING THEIR OFFICE AT NO.67
GOVINDAPPA ROAD
BASAVANAGUDI
BANGALORE-560004

REPRESENTED BY ITS
AUTHORISED REPRESENTATIVE
MR.HEMANTH KUMAR V.                      ... RESPONDENT

THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C. PRAYING TO a) QUASH THE JUDGMENT DATED 02.01.2023 (ANNEXURE-A) PASSED BY THE XXVII ADDL.C.M.M., BENGALURU IN C.C.NO.22746/2017

CONVICTINGE PETITIONER/ ACCUSED NO.2 HEREIN, FOR THE OFFENCES PUNISHABLE UNDER SECTION 138 OF NEGOTIABLE INSTRUMENTS ACT.

THIS CRIMINAL PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 6.02.2023, THIS DAY, THE COURT MADE THE FOLLOWING:

ORDERS ON MAINTAINABILITY

This petition is filed by the petitioner-accused No.2

under Section 482 OF Cr.P.C for setting aside the

judgment of conviction and sentence passed by the 27th

Additional Chief Metropolitan Magistrate, Bengaluru in

C.C.No.22746/2017 dated 2.1.2023 for having convicted

petitioner for the offence punishable under Section 138 of

Negotiable Instruments Act, 1881 (hereinafter referred as

'NI Act')

2. The office raised the objection regarding

maintainability of this petition filed under section 482 of

Cr.P.C., as the petitioner being the accused convicted in

the trial court, requires to file appeal under section 374 of

Cr.P.C.

3. Heard, Sri. Sandesh J. Chouta, learned senior

Counsel for petitioner.

4. The learned senior counsel has contended that

the criminal petition filed under section 482 of Cr.P.C is

maintainable, even though the statutory right of the

accused for filing appeal is available, therefore filing this

petition is maintainable. Hence, prayed for over ruling the

office objections.

5. The learned counsel relied upon the judgments of

Hon'ble Supreme Court in the case of Punjab State

Warehousing Corporation Faridkot Vs Shree Durga Ji

Traders and Ors reported in (2011) 14 SCC 615 and in

case of Vijay and another Vs State of Maharashtra

and Anr reported in (2017) 13 SCC 317.

6. Having heard the arguments and perused the

records, it is an admitted fact that the accused was a

convicted accused by the trial court for the offence

punishable under Section 138 of NI Act. The contention of

the learned senior counsel is that while convicting the

accused No.2, who is only Managing Director of the

company but the trial court acquitted the accused No.1

who is the Company. Therefore, there is an error

committed by the trial court in acquitting the Company

from the charges and convicting only the Managing

Director, which is against the principles laid down by the

Hon'ble Supreme Court in various cases. Therefore, this

petition is maintainable under section 482 of Cr.P.C.

7. The learned senior counsel relied upon the

judgment of Hon'ble Supreme Court in Punjab State

Warehousing Corporation Faridkot Vs Shree Durga Ji

Traders and Ors reported in (2011) 14 SCC 615 where

Hon'ble Supreme Court has held that even the alternative

remedy of filing appeal is available, but there is no

absolute bar to entertain the petition under section 482 of

Cr.P.C. I have verified the judgment of Hon'ble Supreme

Court in the said cases, where the private complaint filed

by the complainant came to be dismissed for default which

falls under section 256 of Cr.P.C. On perusal of the

provisions of the section 256 of Cr.P.C which defines that

closing the proceedings amounts to an acquittal.

Therefore, an appeal can also be filed under section

378(4) of Cr.P.C which is a statutory right and the parties

can also invoke the provisions of section 482 of Cr.P.C.

This court in various cases entertained section 482 of

Cr.P.C., where the complaint was dismissed for non

prosecution or default of not taking steps, even though an

alternative statutory remedy is available, the High Court

can also exercise the power under section 482 of Cr.P.C as

both remedies are before the High Court and not before

the Sessions Court.

8. Another case reported in case of Vijay and

another Vs State of Maharashtra reported in (2017)

13 SCC 317, the Hon'ble Supreme Court has held that

section 397 of Cr.P.C., is attracted against all the orders

except the interlocutory orders, even mere availability of

alternative remedy cannot be a ground to dis-

entitlement of relief under section 482 of Cr.P.C. The

law laid down by the Hon'ble Supreme Court in respect of

quashing the FIR for the IPC offences or any other

offences, this Court can entertain the petitions filed under

Section 482 of Cr.P.C for quashing the petitions and FIR.

Therefore, this ruling is not applicable to the case on hand,

as this petition is filed for setting aside the judgment of

conviction and sentence passed by the trial court, even in

the case of Punjab State case stated supra, there is an

alternative remedy available in respect of 378 of Cr.P.C.

This court entertaining 482 of Cr.P.C, where there is no

evidence led by the parties and there is no final judgment

of conviction or acquittal after the trial in those cases.

Therefore, the High Court can entertain Section 482 of

Cr.P.C, if the complaint is dismissed for non-prosecution or

dismissed for default under section 256 of Cr.P.C.

9. Whereas, the present case on hand, the

petitioner is challenging the conviction and sentence

passed by the trial court by exercising the power under

section 255 of Cr.P.C. Therefore, the petitioner is required

to file appeal under section 374 (2) of Cr.P.C before the

Sessions Judge, where the first appellate court required to

re-appreciate evidence on record and pass the final

judgment and thereafter the aggrieved parties can

approach high court under section 397 of Cr.P.C, if any

concurrent finding of both the Court below. Here in this

Court, this Court cannot re-appreciate the evidence on

record, both on facts and law, which is required to be dealt

with, by the appellate court in the appeal under Section

374 of Cr.P.C. This Court cannot re-appreciate any

evidence on record and give findings, it is only extra

ordinary power for quashing the proceedings, since the

first appeal is nothing but continuation of original

proceedings in appellate court.

If this petition filed under section 482 of Cr.P.C, is

entertained, the respondent will be deprived of right of

appeal before the appellate court and thereafter parties

can approach the High Court.

It appears the accused are following these back door

tactics in order to avoid the interim compensation going to

be imposed by the first appellate court under section 148

of NI Act. Therefore, I am of the view the petition filed

under section 482 of Cr.P.C is not maintainable. The office

objection is sustained.

      Hence,     the   petition   is     dismissed    as   not

maintainable.

Liberty is granted to the petitioner to file appeal

before the appropriate forum. The office to return the

documents to the learned counsel for the petitioner.

Registry is directed to follow this order while raising

objections.

Sd/-

JUDGE AKV