Karnataka High Court
Hanumanthappa S/O Ningappa ... vs Smt.Mahadevakka W/O Mahadevappa ... on 5 July, 2023
Bench: Anil B Katti
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CRL.RP No. 100096 of 2020
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 5TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR JUSTICE ANIL B KATTI
CRIMINAL REVISION PETITION NO. 100096 OF 2020 (397-)
BETWEEN:
HANUMANTHAPPA S/O NINGAPPA BAJAKKANAVAR
AGE- 52 YEARS, OCC- EMPLOYEE,
R/O: HANAGAL TQ. DIST- HAVERI.
PIN-581104.
...PETITIONER
(BY SRI. SADIQ N. GOODWALA, ADVOCATE)
AND:
SMT.MAHADEVAKKA W/O MAHADEVAPPA KOTI
AGE: 45 YEARS, OCC: LIC AGENT,
R/O: HANAGAL TQ. DIST- HAVERI.
PIN-581104.
Digitally ...RESPONDENT
signed by J
MAMATHA
J
MAMATHA Date: (RESPONDENT SERVED)
2023.07.10
18:30:33
+0530
THE CRIMINAL REVISION PETITION IS FILED U/S 397 R/W
SECTION 401 OF CR.P.C., PRAYING TO CALL FOR THE RELEVANT
RECORDS IN CC NO.113/2016 DATED 01/03/2018 ON THE FILE OF
THE SENIOR CIVIL JUDGE AND JMFC, HANGAL AND RECORDS IN
CRL. APPEAL NO.55/2018 ON THE FILE OF THE PRL. DISTRICT AND
SESSIONS JUDGE, HAVERI DATED 05/12/2019 AND ALLOW THIS
CRIMINAL REVISION PETITION, BY SETTING ASIDE THE JUDGMENT
OF CONVICTION AND SENTENCE IN CC NO.113/2016 DATED
01/03/2018 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC,
HANGAL AND IN CRL.APPEAL NO.55/2018 ON THE FILE OF THE PRL.
DISTRICT AND SESSIONS JUDGE, HAVERI DATED 05/12/2019
P/U/SEC. 138 OF N.I. ACT.
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THIS CRIMINAL REVISION PETITION, COMING ON FOR
ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Revision petitioner/accused challenging the order of
trial Court on the file of Prl. District and Sessions Judge,
Haveri, in Crl.A.No.55/2018, dated 5.12.2019, preferred this
revision petition.
2. Respondent though served, remained absent.
3. Heard the arguments of learned counsel for
revision petitioner and perused the records.
4. The revision petitioner/accused was tried before
the trial Court on the file of Senior Civil Judge and JMFC,
Hangal in CC.No.113/2016, dated 1.3.2018, convicting the
accused for the offence punishable under Section 138 of
N.I.Act and imposed sentence as per order of sentence. The
accused challenging the judgment of conviction and order of
sentence passed by the trial Court filed appeal before the
First Appellate Court on the file of Prl. District and Sessions
Judge, Haveri in Crl.A.No.55/2018. The accused also field an
application in I.A.II filed under Section 5 of the limitation
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CRL.RP No. 100096 of 2020
Act, 1963 to condone the delay of 11 days caused in filing
the appeal. The trial Court after having heard both sides, by
order dated 5.12.2019 dismissed I.A.II and refused to
condone the delay of 11 days in filing the appeal. The said
dismissal of I.A.II by the First Appellate Court resulted in
confirming the judgment of conviction passed by the trial
Court.
5. The First Appellate Court in paragraph No.12 of
its order referred to judgment of Honb'le Apex Court in
Basavaraj and another V/s the Special Land
Acquisition Officer, reported in AIR 2014 SC 746. In view
of principles enunciated in the said judgment of the Honb'le
Apex Court, the First Appellate Court has recorded the
finding that appellant has failed to make out any valid
ground for condonation of delay of 11 days in filing the
appeal and as a result dismissed the application at I.A.II and
as consequent result appeal came to be dismissed.
6. In the said case before the Honb'le Apex Court,
proceedings were arising out of the Land Acquisition Act and
there was delay of more than 5-1/2 years and no satisfactory
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CRL.RP No. 100096 of 2020
explanation was furnished in the application filed for
condonation of delay in an appeal filed by appellant/claimant
under Section 55 of the Land Acquisition Act. The same
yardstick cannot be applied where there is marginal delay of
11 days in filing the appeal against the judgment of
conviction.
7. In the present case, accused challenged the
judgment of conviction in terms of Section 374(3) of Cr.P.C.
The First Appellate Court after admitting the appeal, ordered
to issue notice to respondent, who appeared through
counsel. The appeal has to be disposed of on merits. When
there is an application for condonation of delay, the court
has to decide the application by adopting realistic approach
while condoning the delay. Accused, in the affidavit filed in
support of the application pleaded that he was unable to
work due to typhoid and he was under medication.
Therefore, he could not meet his advocate and give
instruction to file the appeal. Therefore, there is delay of 11
days in filing the appeal. The First Appellate Court has not
recorded any finding of it's own as to how the said cause
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does not survive for consideration and if delay of 11 days is
condoned, then respondent/complainant will be subjected to
injustice. The appeal against the judgment of conviction
before the First Appellate Court is statutory right of accused.
The same has to be liberally construed when there is
marginal delay in filing the appeal. In a normal course, when
a person has suffered judgment of conviction, will not keep
quite without filing an appeal, so as to question the
correctness and legality of judgment of conviction.
Therefore, findings recorded by the First Appellate Court is
too technical in rejecting the application I.A.II filed for
condonation of delay. Therefore, order of the First Appellate
Court on I.A.II dated 5.12.2019 requires interfered with by
this Court. Consequently, proceed to pass the following:
ORDER
Revision petition filed by revision petitioner is hereby
allowed.
The order of the First Appellate Court on the file of Prl.
District and Sessions Judge, Haveri, in Crl.A.No.55/2018,
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CRL.RP No. 100096 of 2020
dated 5.12.2019, dismissing I.A.II for condonation of delay
is hereby set aside and the delay caused in filing the appeal
is condoned.
The First Appellate Court is directed to restore the
appeal to its file and to dispose of the same in accordance
with law.
In view of disposal of revision petition, pending I.A.,
if any does not survive for consideration.
(Sd/-)
JUDGE
VB
