Karnataka High Court
Shri. G.R. Subramani vs Shri. B.N. Nanda Gopal on 30 October, 2023
Bench: H.P.Sandesh
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CRL.RP No. 1434 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF OCTOBER, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
CRIMINAL REVISION PETITION NO. 1434 OF 2015
BETWEEN:
1. SHRI. G.R.SUBRAMANI
S/O SHRI. G.C.RANGAPPA
AGED ABOUT 31 YEARS,
RESIDENT OF RAJENDRAHALLI
BYRAKUR HOBLI
MULBAGAL TALUK.
...PETITIONER
(BY SRI GANESH KUMAR R., ADVOCATE)
AND:
1. SHRI. B.N.NANDA GOPAL
S/O N. NANJAPPA SHETTY
AGED ABOUT 43 YEARS,
RESIDING AT NEAR TEACHER COLONY
Digitally signed ST. ANNES SCHOOL, M.H.HALLI ROAD
by SHARANYA T
Location: HIGH MULBAGAL.
COURT OF ...RESPONDENT
KARNATAKA
(BY SRI H.J. ANANDA, ADVOCATE)
THIS CRL.RP IS FILED U/S.397 R/W 401 OF CR.P.C
PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT DATED
26.11.2015 IN CRL.A.NO.28/2015 PASSED BY THE PRL.
DISTRICT AND SESSIONS JUDGE, KOLAR AND ALSO SET
ASIDE THE JUDGMENT DATED 20.04.2015 PASSED BY THE
PRL. CIVIL JUDGE AND JMFC, MULBAGAL IN C.C.NO.355/2010
AND ACQUIT THE PETITIONER.
THIS PETITION COMING ON FOR HEARING THIS DAY,
THE COURT MADE THE FOLLOWING:
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ORDER
Heard the counsel for petitioner and the counsel
appearing for the respondent.
2. This Revision petition is filed praying this Court
to set-aside the order of conviction in C.C No.355/2010 for
the offence punishable under Section 138 of Negotiable
Instrument Act and also set-aside the order passed in
Crl.A No. 28/2015 confirming the order of conviction and
grant such other relief.
3. The factual matrix of the case of the
respondent/complainant before the Trial Court that the
petitioner herein had approached the respondent for a
hand loan of Rs.2,00,000/- for construction of house at
Rajendrahalli village, Mulbagal Taluk. It is also contended
that his request has been considered and he had paid an
amount of Rs.1,90,000/- and when the respondent
insisted him to repay the amount, he gave the post dated
cheque dated 15.07.2009 and when the same was
presented through his banker at Mulbagilu, the Cheque
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was returned as dishonored with an endorsement of
insufficient fund and hence, he had issued a legal notice
on 13.01.2010 through the registered post as well as
certificate of posting and the legal notice issued under
registered post was returned as ' addressee not in station '
and notice served under certificate of posting was served
on him. Inspite of service of notice, he did not come
forward to make the payment and hence, filed the
complaint.
4. The complaint which was filed before the Court
was dismissed for non-prosecution and on the very next
day, an application was filed for restoration before the
Trial Court and the Magistrate has recalled the order and
proceeded against the petitioner herein and both of them
have participated in the proceedings and the complainant
has examined himself as PW1 and also examined Branch
Manager as PW2 and got marked Ex.P1 to Ex.P11. After
the conclusion of the evidence, the accused was also
examined under Section 313 of Cr.P.C but, he did not step
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into the witness box and to examine any of the witnesses
in order to substantiate his defense.
5. The learned Magistrate taking into note of the
material available on record, comes to the conclusion that
the complainant has substantiated his case and hence,
imposed fine of Rs.3,50,000/- and ordered to pay an
amount of Rs.3,30,000/- to the complainant and
remaining Rs.20,000/- vest with the State.
6. Being aggrieved by the judgment and an order
of sentence, an appeal is filed before the appellate Court
and the appellate Court has also confirmed the same on
re-appreciation of both oral and documentary evidence
available on record and hence the present revision petition
is filed before this Court.
7. The counsel appearing for the petitioner would
vehemently contend that once the complaint was
dismissed and the Magistrate has committed an error in
recalling the said order and the Court become functus
officio and ought not to have recall the order and
proceeded against the petitioner herein. The counsel also
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vehemently contend that the Cheque in question was
never issued by the petitioner and it was obtained by
wrongful method and the debt is also not legally
recoverable debt come into force and there must be any
financial transactions between the parties, there is no
financial transactions between them. The counsel also
vehemently contend that the respondent is very much
aware the Cheque in question was obtained by his friend
Doddathahalli Lokesh, who was staying in the petitioner's
room and only in collusion with the respondent and his
friend with ill-intention the alleged story of hand loan was
cooked-up and this aspect has not been considered by the
Trial Court as well as the appellate Court and even during
the respondent's evidence, no documents are produced in
support of alleged loan transaction and inspite of it, both
the Courts have committed an error.
8. The counsel his support of his argument he
relied upon the judgment of the Apex Court passed in
Crl.A No.74/1976 decided on 05.08.1976 in case of
Bindeswari Prasad Singh V/s Kali Singh and the
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counsel brought to notice of this Court paragraph No.4,
wherein the Apex Court has observed with regard to the
jurisdiction of the Magistrate became functus officio and
had no power to review or recall that order on any ground
whatsoever i.e., dismissal of the complaint and set-aside
the order of the Magistrate and quash the proceedings.
9. The counsel also in support of his argument, he
relied upon the judgment of Punjab and Haryana at
Chandigarh in CRM-M-3505-2020 in case of M/s
Minikin Agro India Pvt. Ltd. and another V/s State of
Punjab and others and brought to notice of this Court
page No.12 wherein an observation is made the provision
of law that emerges from a reading of the above said
judgments i.e., judgment of the Apex Court held that once
a case was finally decided by a Magistrate, then, the said
Court became functus officio and has no power to review
or recall the said order on any ground whatsoever. The
order vide which a case has been dismissed in default,
whether on the ground of the copy of the complaint having
not been supplied or for want of prosecution, would be a
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final order and thus, no application for reviewing or
recalling of the said order would be maintainable and it is
further observed that there is no provision in the Cr.P.C
vesting in the Magistrate inherent jurisdiction or giving the
Magistrate to power to review/recall a final order. Even the
provisions under Section 362 of Cr.P.C would bar the
Magistrate from recalling/reviewing such an order as an
order vide which a petition or a complaint has been
dismissed in default, cannot be stated to be a case of
clerical or arithmetical error in the order as envisaged
under Section 362 of Cr.P.C and hence, the impugned
order is illegal and is liable to be set-aside.
10. The counsel by referring these two judgments
would vehemently contend that the Magistrate has no
power to recall the said order and hence, the judgment
and decree passed by the Trial Court as well as the
appellate Court are not maintainable and the same is
suffers from legality and correctness and hence, this Court
has to invoke revisional jurisdiction.
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11. The counsel appearing for the respondent in his
argument he vehemently contend that the very order of
recall made by the Trial Court is not challenged by the
petitioner herein, the petitioner even after the restoration
of complaint participated in the proceedings in C.C
No.355/2010 and not raised any objections before the
Trial Court as well as not raised any objections before the
appellate Court and for the first time, even though not
raised the said ground in the revision petition, only during
the course of argument has raised the said contention
before this Court and when the petitioner herein has
participated without challenging the order or recalling the
same and when the Trial Court has passed an order on
merits with regard to the transaction between the
petitioner and the respondent herein and now cannot raise
the said ground for the first time before this Court.
12. The counsel in support of his argument he
relied upon the judgment of this Court passed in Crl.R.P
No.1242/2021 dated 8th day of April, 2022 in case of
M/s A Seating A Partnership Firm V/s M/s Nandini
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Modulars and the counsel would vehemently contend that
this Court in detail discussed the material on record and
also the principles laid down in the judgments which are
referred in the judgment and formulated the point that
whether the appellate Court has committed an error in
setting aside the order and remanding the matter to the
Trial Court to consider the delay and whether it requires
interference of this Court and framing such a point for
consideration and considering the point for consideration
taken note of the fact that the appellate Court has not
committed an error in remanding the matter to consider
the issue involved between the parties and also in
paragraph No.23 has also taken note of the judgment of
Pawan Kumar Ralli wherein an observation is made that
the Supreme Court was not laying down a legal
proposition that without even filing an application for
condonation of delay at initial stage, the complainant can
be given an opportunity in respect thereof at any stage of
the proceedings. But, the fact is that when the issue of
limitation is raised before the Appellate Court, immediately
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the complainant has filed an application before the
Appellate Court for condonation of delay and the Appellate
Court comes to the conclusion that the delay cannot be
considered in Appellate Court usurping the powers of the
Trial Court and the same has to be dealt with by the Trial
Court and the same is in accordance with the judgment of
the Appellate Court.
13. The counsel referring this principles referred in
the judgment would vehemently contend that for the first
time, the issue was raised before the Appellate Court and
having considered the same this Court comes to the
conclusion that the Appellate Court has not committed any
error in setting the judgment and directed the complainant
to file a necessary application to condone the delay on the
ground that issue was raised for the first time before the
Appellate Court. The counsel by referring this judgment
would vehemently contend that before the Trial Court as
well as the Appellate Court and also in this Court while
filing the revision petition no such grounds are urged, only
for the first time during the course of argument, the said
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ground urged and hence, the said judgment is aptly
applicable to the case on hand since, for the first time the
same has been urged and recall order has not been
questioned before this Court.
14. The counsel also referred the judgment
reported in (2015) 14 Supreme Court Cases 399 in
case of Iris Computers Limited V/s Askari Infotech
Private limited and others and the counsel appearing
for the respondent brought to notice of this Court
paragraph No.9 wherein discussed with regard to Section
200 and 202 of the Code and the counsel by referring this
judgment would vehemently contend that first stage of
dismissal of complaint before the issuance of process arise
under Section 203 of the code, at which stage the accused
has not role to play. Subsequent to issuance of process,
the question of the accused approaching the court by
making an application under Section 203 of the code for
dismissal of complaint is impermissible because by then
the stage of Section 203 is already over and the
Magistrate has proceeded further to Section 204 stage.
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The counsel also brought to notice of this Court that
dismissal of complaint by the Magistrate under Section
203 evidently falls into the former stage of the
proceedings when the Magistrate has to base his opinion
as to the existence of sufficient ground for proceeding
towards the second stage on the statements of the
complainant and the witnesses along with the result of the
inquiry conducted under Section 202. The counsel by
referring this principles vehemently contend that in the
case on hand the complaint was dismissed invoking
Section 202 and no process was issued against the
petitioner herein and only the process was issued after
restoring the complaint and when such being the case, the
very contention of the petitioner's counsel that the Court
become functus officio cannot be accepted.
15. The counsel also would vehemently contend
that when the petitioner participated after the restoration
of the complaint and assisted the Trial Court in
determining the case on finality with regard to the
transaction in issuance of cheque and also no such ground
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was urged before the Trial Court and as well as before the
appellate Court and for the first time, the said ground
urged before this Court while arguing the matter and
hence, the contention of the petitioner cannot be
accepted.
16. Having heard the petitioner's counsel and also
the counsel for the respondent and in keeping the
principles laid down in the judgments referred supra by
the petitioner's counsel and also the counsel appearing for
the respondent, the point that would arise for the
consideration of this Court are:
1) Whether this Court can invoke revisional
jurisdiction in a case on hand?
2) Whether the Court of Magistrate become a functus
officio as contended by the petitioner's counsel?
3) What order?
POINT Nos.1 and 2:
17. Having heard the petitioner's counsel and also
the counsel appearing for the respondent, no dispute with
regard to the fact that the complaint is filed under Section
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138 of Negotiable Instrument Act. It is also not in dispute
that the very same complaint was dismissed before the
issuance of process and also it is not in dispute that on the
very next day, an application is filed before the Magistrate
for restoring the complaint and the same was allowed. It is
also not in dispute that the Magistrate has restored the
petition based on the application filed by the complainant.
It is also not in dispute that the complaint was dismissed
before the issuance of the process invoking Section 204 of
Cr.P.C, but the impugned order passed by the Trial Court
amounts to dismissal of complaint under Section 203 of
Cr.P.C and the same may be not on the merits and the
same is on the default.
18. It is also important to note that there is no
dispute with regard to the principles laid down in the
judgments referred supra, the Magistrate become functus
officio once the complaint is dismissed as held by the Apex
in the judgment referred supra by the petitioner's counsel
and also the Punjab and Haryana High Court at
Chandigarh has also taken note of the same in the
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judgment in case of M/s Minikin Agro India Pvt. Ltd., and
another V/s State of Punjab and others, but in the case on
hand it has to be noted that the order of dismissal was
passed prior to the issuance of process and an application
was filed on the very next day for restoration of the same
and no doubt as held in the Apex Court in the judgment
referred by the respondent's counsel wherein discussed
with regard to Section 200 to 204 discussed with regard to
exercising the power under Section 203 and 204 of Cr.P.C
and no doubt the order passed by the Trial Court invoking
Section 203 is only an order passed is passed before the
appearance of the respondent.
19. It is also important to note that the
accused/petitioner was kept quite and not raised the said
ground for recalling the order by the Magistrate before the
Trial Court when the proceedings were taken place and
also it is clear that even in the appellate Court not raised
the same issue with regard to the recalling of the order
and restoration of the complaint. Having perused the
revision petition before this Court also no such ground is
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urged before this Court and only ground is urged with
regard to the consideration of the complaint on merits by
the Trial Court as well as the appellate Court, but during
the course of argument, the counsel appearing for the
revision petitioner vehemently contend that the Magistrate
become functus officio. No doubt I have already pointed
out that the Magistrate can consider the material available
on record if the complaint is before him, once the
complaint is dismissed under Section 203 of Cr.P.C, the
Magistrate becomes functus officio, but the fact is that
when the petitioner herein kept quite for a longer period
and the said ground is not urged before the Magistrate and
also he did not challenge the order of recalling the order
and restoring the complaint before the revisional Court as
well as this Court and for the first time in the revision
petition has raised the same and he kept quite from 2015
to 2023 and for the first time before this Court raised the
said contention, he had participated in the Trial Court
while considering the matter on merits in C.C No.355/2010
and no such ground was urged and no such order was
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questioned before the Trial Court and also before the
appellate Court and also before this Court not challenged
the order of restoring the complaint and for the first time
he had raised the ground before this revisional Court that
too during the course of argument and when such ground
urged before this Court for the first time and he had
participated in the Trial Court on merits in C.C
No.355/2010 and also before the Appellate Court in Crl.A
No.28/2015 and when the order has not been challenged
before the concerned Court as well as the appellate Court
and also before this Court and the said order of restoring
of the complaint has attained its finality and knowingfully
well known that he had participated in the proceedings
both in the criminal proceedings as well as in the criminal
appeal and for the first time he has raised the objections
cannot be raised when the matter is considered on merits
and hence the very contention of the petitioner counsel
that the Magistrate becomes functus officio cannot be
accepted and principle laid down in the judgment of the
Apex Court and also the judgment of the Punjab and
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Haryana High Court not applicable to the facts of the case
on hand wherein a question was challenged before the
respective Courts with regard to the restoration of
complaint itself but, here is the case of not challenged the
order of restoration and only challenged the order on
merits passed by the Trial Court as well as the Appellate
Court and when he kept quite and order of the Magistrate
has attained its finality and if the petitioner has challenged
the order of restoration before this Court or before the
appellate Court then there would have been force in the
contention of the petitioner's counsel and having
acquiesced himself with regard to the restoration of the
complaint and participated in the proceedings of the Trial
Court as well as the Appellate Court and for the first time
he has raised the ground before this Court and hence I do
not find any ground in the contention of revision
petitioner's counsel with regard to the very contention that
Magistrate becomes functus officio cannot be accepted.
20. Now coming to the merits of the case is
concerned, since the petitioner has urged the main
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grounds in the revision petition and only raised the
technically before this Court while arguing the matter and
hence this Court has to look into the merits of the case.
21. Having taken note of the contention of
complainant/respondent, it is the specific case that the
complainant/respondent had advanced the hand loan of
Rs.1,90,000/- to the accused in respect of the said debt he
had issued the cheque and issuance of cheque is not
disputed and only it is the contention that he had given to
his roommate one Lokesh and the said cheque has been
misused and presented before the Court and in order to
substantiate his contention that he had given the cheque
to Lokesh and he has not made any efforts to examine the
said Lokesh before the Trial Court and when he had taken
the said defense he ought to have examined the said
Lokesh.
22. It is also important to note that though he had
taken such a defense in the proceedings, he himself has
not stepped into the witness box to substantiate his
contention that the cheque was misused by the
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complainant and the cheque was given in favour of Lokesh
and no doubt it is settled law also that if the complainant's
case is not sustainable and if any answers are elicited from
the mouth of the complainant with regard to the said
defense is concerned, then no need to examine or step
into the witness box, but the said circumstances is not
warranted in the case on hand, no such answers are
elicited from the mouth of the PW1 with regard to the
defense which he had taken during the course of cross of
PW1. The said suggestion was made in the cross-
examination of PW1 and PW1 categorically says that he
made the payment through cheque and the same was
encashed by the petitioner herein.
23. It is also the contention that no notice has been
served and the fact that notice was sent through
certificate of posting and also through the registered post
and admittedly registered post which was returned with an
endorsement and the same is not served and the
certificate of notice was also sent to him and the DW1 was
also examined who is none other than the branch post
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master and he also says that notice sent to him through
registered post was not served but he was cross-examined
by the complainant's counsel and answer is elicited from
the mouth of PW1 that the notice sent through the
certificate of posting and the same was delivered to the
petitioner and when such evidence is available before the
Court and the same is not rebutted by the petitioner
herein and service of notice against the petitioner in terms
of the evidence of the PW1 is clear that the notice was also
served. The evidence of complainant has not been
rebutted and if the same is rebutted during the course of
cross-examination and answer elicited from the mouth of
PW1 then, the very contention of the petitioner's counsel
that no need to enter into the witness box can be accepted
but, no such material is elicited from the mouth of PW1
and apart from that the PW1 has also examined the bank
manager as PW2 with regard to the dishonor of the cheque
and when the material is placed before the Court that the
payments are made through cheque and the cheque was
also encashed and the same is not rebutted and even on
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merits also the petitioner has not made out any ground to
comes to other conclusion to exercise the powers under
the revisional jurisdiction that both the Trial Court as well
as the Appellate Court comes to an erroneous conclusion
on merits on considering the material available on record.
Hence, I do not find any merit in the revision petition to
comes to a other conclusion.
24. The counsel appearing for revision petitioner
would submits that the document which clearly discloses
that for having made the payment of Rs.1,40,000/- that is
also by way of cheque payment and in respect of
remaining of amount of Rs.50,000/- no document is
produced. The Trial Court taken note of the same in the
order in paragraph No.19 that the cheque was issued in
the month of July-2007 but, the payment of Rs.40,000/-
was made in the month of February-2008 by way of cash
to the accused and also paid an amount of Rs.50,000/- to
the accused through cheque dated 20.02.2008 and also
deposited an amount of Rs.1,40,000/- to the account of
the accused on 03.11.2007. Having considered the
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payment of Rs.1,00,000/- on 03.11.2007 through cheque
as well as payment of Rs.50,000/- to the accused through
cheque dated 20.02.2008 and payment made through
cheque to the tune of Rs.1,50,000/- and an amount of
Rs.40,000/- was paid by cash according to the
complainant and the cheque amount is Rs.2,00,000/- and
admittedly I have already pointed out that the cheque was
given in the year 2009 though the transaction of the year
2007 and 2008 and the Trial Court has also taken note of
the fact that amount of deposited 5 ½ years back and also
taken note of the judgment of 2006 (I) KCCR 366 in
case of Mrs.Shaila.P.Prabhu V/s Nagendra.K.Mallya
and another and hence awarded an amount of
Rs.3,50,000/- and having considered the payment by way
of cheque to the tune of Rs.1,00,000/- in the year 2007
and an amount of Rs.50,000/- in the month of February-
2008 and other contention that an amount of Rs.40,000/-
was paid by way of cash. It is appropriate to modify the
order of the Trial Court to pay the amount of
Rs.3,00,000/- instead of Rs.3,50,000/-.
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POINT No.3:
23. In view of the discussions made above, I pass
the following:
ORDER
The Revision Petition is allowed in part.
The order of the Trial Court dated 20.04.2015 is
modified by reducing the amount to Rs.3,00,000/- instead
of Rs.3,50,000/- and out of that amount, an amount of
Rs.2,90,000/- is payable in favour of the complainant and
Rs.10,000/- is vest with the State. The amount of
Rs.3,00,000/- is payable within a period of one month. If
the amount is not paid within the stipulated period, the
amount awarded by the Trial Court i.e., Rs.3,50,000/- is
payable to the respondent/complainant as ordered by the
Trial Court.
Sd/-
JUDGE
RHS
