Karnataka High Court
Dinesh Shetty vs Isubu Beary on 6 February, 2024
Author: K.Natarajan
Bench: K.Natarajan
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CRL.P No. 6632 of 2022
C/W CRL.P No. 6715 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE K.NATARAJAN
CRIMINAL PETITION NO. 6632 OF 2022
C/W
CRIMINAL PETITION NO. 6715 OF 2022
IN CRL.P NO.6632/2022
BETWEEN:
DINESH SHETTY
AGED ABOUT 48 YEARS,
S/O. LATE BABU SHETTY,
R/AT BEERKODI HOUSE,
BOLANTHOOR POST,
BANTWAL TALUK,
D.K. DISTRICT - 575 134.
...PETITIONER
(BY SRI. NISHIT KUMAR SHETTY, ADVOCATE)
AND:
Digitally signed by
VEDAVATHI A K ISUBU BEARY
Location: High
Court of Karnataka AGED ABOUT 75 YEARS,
S/O. LATE MOIDEEN KUNHI,
M/S. SEECO TRADERS,
UNITY SHOPPING COMPLEX,
MARKET ROAD, MANGALURU,
D.K.DISTRICT - 575 001.
...RESPONDENT
(BY SRI. SHARATH P.H., ADVOCATE FOR
SRI. SACHIN B.S., ADVOCATE)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C. PRAYING TO ALLOW THE PETITION AND SET ASIDE
THE ORDER DATED 08.07.2022 MADE IN CRL.A.NO.123/2020
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CRL.P No. 6632 of 2022
C/W CRL.P No. 6715 of 2022
PASSED BY THE III ADJ AT MANGALURU DK FOR THE OFFENCE
P/U/S.138 OF NI ACT.
IN CRL.P NO.6715/2022
BETWEEN:
DINESH SHETTY
AGED ABOUT 48 YEARS,
S/O. LATE BABU SHETTY,
R/AT BEERKODI HOUSE,
BOLANTHOOR POST,
BANTWAL TALUK,
D.K. DISTRICT - 575 134.
...PETITIONER
(BY SRI. NISHIT KUMAR SHETTY, ADVOCATE)
AND:
ISUBU BEARY
AGED ABOUT 75 YEARS,
S/O. LATE MOIDEEN KUNHI,
M/S. SEECO TRADERS,
UNITY SHOPPING COMPLEX,
MARKET ROAD, MANGALURU,
D.K.DISTRICT - 575 001.
...RESPONDENT
(BY SRI. SHARATH P.H., ADVOCATE FOR
SRI. SACHIN B.S., ADVOCATE)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C. PRAYING TO ALLOW THE PETITION AND SET ASIDE
THE ORDER DATED 08.07.2022 MADE IN CRL.A.NO.122/2020
PASSED BY THE III ADDITIONAL DISTRICT JUDGE AT
MANGALURU,D.K. FOR THE OFFENCE P/U/S.138 OF THE N.I
ACT.
THESE PETITIONS, COMING ON FOR ADMISSION, THIS
DAY, THE COURT MADE THE FOLLOWING:
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CRL.P No. 6632 of 2022
C/W CRL.P No. 6715 of 2022
ORDER
Crl.P.No.6632/2022 and Crl.P.No.6715/2022 are filed by
the petitioner/accused under section 482 of CR.P.C., for
quashing the order of the Sessions Judge in
Crl.A.Nos.122/2020 and 123/2020 dated 8.7.2022 posting the
matter for final judgment along with passing orders under 391
of Cr.P.C., by the III A.D.J., Mangaluru D.K., for the offence
punishable under Section 138 of Negotiable Instruments Act ,
1881 (herein after referred to as 'NI Act').
2. Heard the learned counsel for petitioner and learned
counsel for the respondent.
3. The case of the petitioner is that, the petitioner said to
be found guilty and convicted in both cases, arising out of the
offences punishable under Section 138 of NI Act. He has filed
both appeals to the sessions Judge in Crl.A.Nos.123/2020 and
122/2020 and during the pendency of the appeal, he has filed
application under section 391 of Cr.P.C., for seeking permission
of the Appellate Court for leading additional evidence. The trial
court without considering the application, posted the matter for
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passing the orders under section 391 of Cr.P.C., along with the
main judgment, which is under challenge.
4. Learned counsel for the petitioner has contended, the
First Appellate Court committed error in posting the matter for
final judgment, to hear the interlocutory application under
section 391 of Cr.P.C., is not correct. The First Appellate Court
ought to have allowed the application, either by recording the
evidence by itself, or by referring the matter to Magistrate for
recording evidence and sending back to the First Appellate
Court for deciding the case for final judgment, but without
doing so, posting the interlocutory application to hear, along
with main judgment is not correct. Hence, prayed for allowing
the petition.
5. Per contra, learned counsel for the respondent
seriously objected that though the First Appellate Court ordered
for payment of 20% of the fine amount, while suspending the
sentence, he has not deposited the amount. Therefore, trial
court insisted for depositing the said amount and hence not
heard the argument. Hence, prayed for dismissing the petition.
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6. Having heard the arguments and perused the records.
learned counsel for the petitioner also relied upon the judgment
of Hon'ble Supreme Court in case of Asim Alias Munmun
Alias Asif Abdulkarim Solanki Vs Sate of Gujarat reported
in (2021) 16 SCC 459, in a similar situation, the Hon'ble
Supreme court has held, the First Appellate Court shall pass the
orders on 391 of Cr.P.C., whether to examine itself or directing
the Magistrate to take the evidence and send the evidence or
depositions to the First Appellate Court on considering the
same, along with the interlocutory application. This court also
held in catena of decisions regarding, how to deal with the
applications under Section 391 of Cr.P.C. as well as under
Order 41 Rule 47 of CPC, seeking additional evidence in the
appeal. Considering the same, I am of the view, the order
passed by the trial court for hearing under section 391 of
Cr.P.C., along with the main appeal on the merits of the
appeal, is not correct and posting the matter for judgment, is
also not correct. Therefore, the impugned order is liable to be
set aside.
7. However the learned counsel for respondent submits
the petitioner not complied the order passed under section
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148 of NI Act, by the First Appellate Court while suspending the
sentence. It is well settled by this court in catena of decisions,
the order passed by the First Appellate Court for suspending
the sentence is an interim compensation, provided under
section 148 of NI Act similar to provision under section 143 (A)
of NI Act, during the pendency of the proceedings. Such being
the case, if any order passed by the First Appellate Court for
imposing 20% of the fine amount to be deposited, if it is not
deposited within 90 days, it is recoverable under section 431
read with 421 of CR.P.C. Therefore, the petition deserves to be
allowed.
Accordingly, this petition is allowed.
The impugned order passed by the First Appellate Court in
Crl.A.Nos.122/2020 and 123/2020 on 8.7.2022 on the file of
the III A.D.J., Mangaluru D.K., is set aside.
The First Appellate Court is directed to pass the order
under section 391 of CR.P.C., by following the procedure and
also judgment of Hon'ble Supreme Court stated supra.
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Learned counsel for respondent is having liberty to file
miscellaneous petition under Section 421 / 431 of Cr.P.C., for
recovery of the interim compensation awarded by the First
Appellate Court.
Sd/-
JUDGE
AKV
CT:SK
