Karnataka High Court
Mario Fransisco Xavier Fernandes vs Sri. Gopichand Prabhakar ... on 5 January, 2023
Bench: Mohammad Nawaz
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CRL.P No. 104082 of 2022
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 5TH DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE MOHAMMAD NAWAZ
CRIMINAL PETITION NO. 104082 OF 2022 (482)
BETWEEN:
MARIO FRANSISCO XAVIER FERNANDES,
S/O. LATE LUIS FERNANDES,
AGE. 58 YEARS, OCC. BUSINESS,
R/O. H. NO.958, XELLIM (SHELLIM),
LOLIEM, CUNCONA, SOUTH GOA, STATE. GOA-403702.
...PETITIONER
(BY SRI. SAURABH A. SONDUR., ADVOCATE)
AND:
SRI. GOPICHAND PRABHAKAR VERNEKAR,
AGE. 47 YEARS, OCC. BUSINESS,
R/O. 1909/1, SAIKATTA ROAD,
KODIBAG, KARWAR, DIST. UTTARA KANNADA-581303.
...RESPONDENT
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.PC., SEEKING TO QUASH ORDER DATED 13.07.2022 AND
J CONSEQUENT ORDER DATED 24.08.2022 PASSED IN CRL. A.
MAMATHA
NO.52/2022 ON THE FILE OF III ADDL. DISTRICT AND SESSIONS
JUDGE, UTTARA KANNADA, KARWAR. AND CONSEQUENT QUASH
ORDER DATED 30.09.2022 PASSED BY THE PRL. J.M.F.C., KARWAR,
IN CC NO.184/2017 REGISTERED FOR OFFENCES PUNISHABLE
U/S.138 OF NI ACT.
THIS PETITION COMING ON FOR ADMISSION, THIS DAY, THE
COURT MADE THE FOLLOWING:
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CRL.P No. 104082 of 2022
ORDER
Heard the learned counsel for petitioner and perused the
material on record.
2. Respondent is served but unrepresented.
3. Petitioner/ accused was convicted by the trial Court
for the offence punishable under Section 138 of Negotiable
Instruments Act (N. I. Act for short) in C.C. No.184/2017 vide
judgment dated 05.042022. He was sentenced to pay a fine of
Rs.30,85,000/-, in default of payment of fine, to undergo
simple imprisonment for a period of one year.
4. Accused preferred Crl.A. No.52/2022 on the file of
the Court of Prl. District and Sessions Judge, Uttara Kannada,
Karwar. The learned Sessions Judge was pleased to pass an
order staying the operation of the sentence of conviction
passed against the accused for a period of 6 months subject to
the condition that he shall deposit 20% of the cheque amount
and furnish surety for like sum to the satisfaction of the Trial
Court. The said order was passed on 11.05.2022. However, the
learned Sessions Judge vide order dated 13.07.2022, on the
ground that the amount as directed was not deposited, recalled
CRL.P No. 104082 of 2022
the said order, consequent to which, the learned Magistrate
issued Non-Bailable-Warrant to the accused on 30.09.2022,
which is called in question in this petition.
5. It is relevant to see that the impugned order of
sentence of conviction passed against the accused was stayed
for a period of 6 months by the Sessions Court, subject to
accused depositing 20% of the cheque amount and furnishing
of surety for the like sum. Since as on 13.07.2022 the said
amount was not deposited and also since there was no
representation on behalf of the accused, the learned Sessions
Judge has proceeded to recall the order staying the operation
of the sentence of conviction passed against the accused.
6. It is the submission of the learned counsel for
petitioner/ accused that 20% of the amount was not directed to
be deposited within a stipulated time and since there was a
stay order for a period of 6 months, the petitioner was under
the impression that the said amount can be deposited within a
period of 6 months. He further submits that consequently, on
26.07.2022 the said deposit as directed by the appellant Court
was made before the trial Court.
CRL.P No. 104082 of 2022
7. The order sheet of the trial Court would reflect that
20% of the cheque amount i.e., a total sum of Rs.6,15,000/-
has been deposited vide receipt No.266/2022-23 on
26.07.2022.
8. The petitioner/ accused has deposited 20% of the
cheque amount before the trial Court. The appeal preferred by
him against the order passed by the trial Court is pending
consideration before the learned Sessions judge. Considering
that 20% of the cheque amount has been now deposited and
the order passed by the learned Sessions Judge on 11.05.2022
has been complied, it is just and necessary to pass the
following;
ORDER
i) Petition is allowed,
ii) The order dated 30.09.2022 passed in C.C.
No.184/2017 by the Court of Prl. JMFC, Karwar
issuing Non-Bailable-Warrant against the accused is
set aside.
CRL.P No. 104082 of 2022
iii) The order dated 11.05.2022 staying the operation
of sentence of conviction passed against the
accused/ appellant is hereby restored.
iv) The learned Sessions Judge shall dispose of the
appeal preferred by the accused in accordance with
law.
Sd/-
JUDGE
PJ
