Karnataka High Court
Ulvappa Basavanneppa Nandi vs Basavaraj S/O. Mallappa Kamati on 19 February, 2025
Author: Ravi V.Hosmani
Bench: Ravi V.Hosmani
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CRL.RP No. 100147 of 2023
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 19TH DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE RAVI V.HOSMANI
CRIMINAL REVISION PETITION NO.100147 OF 2023
[397(Cr.PC)/438(BNSS)]
BETWEEN:
ULVAPPA BASAVANNEPPA NANDI
AGE: 58 YEARS, OCC. AGRICULTURE,
R/O. HIREBAGEWADI-591109,
TQ. AND DISTRICT: BELAGAVI.
... PETITIONER
(BY SRI TANAY BORKAR, ADVOCATE FOR
SRI PRASHANT MATHAPATI, ADVOCATE)
AND:
BASAVARAJ S/O. MALLAPPA KAMATI,
AGE: 42 YEARS, OCC. BUSINESS AND AGRICULTURE,
R/O. MASTIHOLI VILLAGE, POST: NARASHINGPUR,
TQ. HUKKERI, DIST. BELAGAVI, PIN-591243.
Digitally
signed by
RUDRAYYA
KALMATH
MALLIKARJUN
MALLIKARJUN RUDRAYYA
KALMATH
Date:
... RESPONDENT
(BY SMT.GEETHA K.M @ PAWAR, ADVOCATE)
2025.02.21
14:52:37
+0530
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 READ WITH UNDER SECTION 401 OF CR.P.C. 1973,
SEEKING TO SET ASIDE THE JUDGMENT AND ORDER OF
CONVICTION DATED 24.02.2023 PASSED IN CRIMINAL APPEAL
17/2022 ON THE FILE OF V ADDL. DISTRICT AND SESSIONS JUDGE
BELAGAVI, CONFIRMING THE ORDER OF CONVICTION DATED
12.07.2019 PASSED IN C.C.NO. 1638/2017 ON THE FILE OF VI JMFC
BELAGAVI FOR OFFENCE PUNISHABLE UNDER SECTION 138 OF NI
ACT, ON THE FILE OF JUDICIAL MAGISTRATE FIRST CLASS VI AT
BELAGAVI BY ALLOWING THE CRIMINAL REVISION PETITION.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
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NC: 2025:KHC-D:3401
CRL.RP No. 100147 of 2023
ORAL ORDER
(PER: THE HON'BLE MR. JUSTICE RAVI V.HOSMANI)
Challenging judgment dated 24.02.2023 passed by V
Additional District and Sessions Judge, Belagavi ('Appellate
Court', for short) in Crl.A.no.17/2022 and judgment of
conviction and order of sentence dated 12.07.2019 passed by
VI J.M.F.C, Belagavi ('Trial Court', for short) in
C.C.no.1638/2017, this revision petition is filed.
2. Sri Tanay Borkar, learned advocate appearing for
Prashant Mathapati, advocate for petitioner (accused)
submitted a complaint was filed by respondent (complainant)
under Section 200 of Code of Criminal Procedure, 1973
('CrPC') against petitioner alleging they were acquainted with
each other since 10 years, and petitioner often borrowed hand
loan was repaid same. In February, 2016, he borrowed
Rs.4,00,000/- for marriage of his children agreeing to repay by
May, 2017. Thereafter, he borrowed further sum of
Rs.10,00,000/-, which was given by NEFT transfer from Axis
Bank, Belagavi on 07.04.2017. Further, towards repayment as
assured, petitioner issued cheque no.045951 dated 13.07.2017
for Rs.14,00,000/-. When presented, cheque was dishonored
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and returned with endorsement "funds insufficient", on
14.07.2017. Complainant got issued legal notice 05.08.2017
demanding repayment within fifteen days. Despite receipt of
notice, there was neither any reply nor repayment.
3. Hence, complainant was filed C.C.no.1638/2017.
After petitioner appeared and pleaded to be tried, matter was
set for trial. Complainant examined himself as PW-1 and got
marked Exs.P1-P6. Thereafter, incriminatory material was
explained to accused and his statement under Section 313 of
CrPC was recorded, which petitioner denied as false.
Thereafter, respondent examined himself as DW-1 but did not
produce any documents.
4. It was further submitted, though petitioner had set-
up several valid defences, trial Court passed judgment of
conviction and order on sentence dated 12.07.2019 directing
petitioner to pay Rs.9,00,000/- to complainant after deducting
Rs.5,00,000/- paid by petitioner and in default, to undergo
simple imprisonment for a period of six months.
5. Aggrieved thereby, Crl.A.no.17/2022 was filed on
19.01.2022 after delay of 929 days, including Covid-19
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Pandemic period. Though application for condonation was filed
assigning sufficient reasons, without proper appreciation and
contrary to ratio laid down in Vedabai v. Shantaram Baburao
Patil, reported in 2001 (9) SCC 106 that Courts should be
liberal in condoning delay, Appeal was dismissed on ground of
delay, observing that petitioner had not produced any material
in support of application and mere filing of affidavit would not
be sufficient. It was further submitted, Hon'ble Supreme Court
in Cognizance for Extension of Limitation, In re, reported
in 2022 (3) SCC 117, held for purposes of limitation, period
from 15.03.2020 to 28.02.2022 was to be excluded. Though,
even excluding said period, there would be a delay of
approximately eight months, it was stated, petitioner was
unaware about disposal of trial Court proceedings. And
immediately after knowledge of order, application for certified
copy was filed on 14.01.2022. Copy was received on
18.01.2022 and appeal was filed on 20.01.2022. Therefore,
order passed by Appellate Court was contrary to law. On above
grounds sought for allowing petition.
6. On other hand, Smt.Geetha K.M. Pawar, learned
counsel for complainant opposed petition. At outset, delay of
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929 days was enormous and without proper explanation.
Moreover, it was not supported by any material and therefore,
rightly rejected appeal. It was submitted, trial Court had taken
note of all aspects properly and appeal was filed only to dilate
proceedings. On said grounds, sought dismissal of petition.
7. Heard learned counsel.
8. From above, point that would arise for consideration
is:
"Whether impugned judgment/orders passed
by trial/appellate Courts call for interference?"
9. Though this Revision Petition is filed challenging
judgment/orders passed by trial Court as well as Appellate
Court, it is seen judgment passed by Appellate Court was not
on merits of matter, but on delay only. Hence, it would be
appropriate to deal with legality of order passed by appellate
Court first.
10. While there is no dispute about appeal having been
filed belatedly by 929 days. However, as per petitioner there
was sufficient reason assigned i.e. due to prevalence of Covid-
19 Pandemic in respect of portion of it, while in respect of
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remaining, it was stated to be due to petitioner being unaware
of order passed by trial Court. In view of decision Cognizance
for Extension of Limitation, In re's case (supra) period
during Covid-19 Pandemic would stand excluded.
11. In respect of remaining period, complainant merely
disputed petitioner's assertion about lacking knowledge of order
passed by trial Court without producing any material which
would establish knowledge earlier than asserted. Hon'ble
Supreme Court in Vedabai's case (supra), held:
"5. In exercising discretion under Section 5 of the
Limitation Act the courts should adopt a
pragmatic approach. A distinction must be made
between a case where the delay is inordinate and
a case where the delay is of a few days. Whereas
in the former case the consideration of prejudice
to the other side will be a relevant factor so the
case calls for a more cautious approach but in the
latter case, no such consideration may arise and
such a case deserves a liberal approach. No hard-
and-fast rule can be laid down in this regard. The
court has to exercise the discretion on the facts of
each case keeping in mind that in construing the
expression "sufficient cause", the principle of
advancing substantial justice is of prime
importance. In our view in this case, the approach
of the learned Additional District Judge is wholly
erroneous and his order is unsustainable. It is
evident that the discretion under Section 5
of the Limitation Act is exercised by the
Additional District Judge in contravention of
the law laid down by this Court, that the
expression "sufficient cause" should receive
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liberal construction, in a catena of decisions
(see State of W.B. v. Administrator, Howrah
Municipality [(1972) 1 SCC 366] and Sandhya
Rani Sarkar v. Sudha Rani Debi [(1978) 2 SCC
116]). The High Court in exercising its jurisdiction
under Section 115 CPC failed to correct the
jurisdictional error of the appellate court."
12. Under above circumstances, refusal to condone delay
would be contrary to law and unsustainable warranting
interference. And since Appellate Court had not considered
appeal on merits, it would be appropriate to remit matter back
to Appellate Court to enable adjudication of appeal on merits,
by issuing appropriate direction as would protect interests of
complainant in avoiding further delay. Thus, point for
consideration is answered partly in affirmative. Hence,
following:
ORDER
a. Revision petition is allowed in part,
impugned judgment/order dated
24.02.2023 passed by V Additional District
and Sessions Judge, Belagavi in
Crl.A.no.17/2022 is set aside.
b. Consequently, Crl.A.no.17/2022 is
restored to file.
c. Since both parties are represented, they
are directed to appear before Appellate
Court on 24.03.2025 without awaiting any
fresh notice.
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d. Thereafter Appellate Court is directed to
decide appeal on merits as early as
possible within an outer limit of four
months.
e. Registry to transmit trial Court Records to
Appellate Court well before 24.03.2025.
SD/-
(RAVI V.HOSMANI)
JUDGE
GRD
CT:PA
