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2012 DIGILAW 669 (KAR)

George Joseph v. HMT (International) Limited

2012-08-14

A.N.VENUGOPALA GOWDA

body2012
Judgment 1. The petitioners and respondent No.2/accused, were charged for an offence punishable under S.138 of Negotiable Instruments Act, 1881 ('the Act' for short), on a complaint filed by the respondent No.1, In C.C.No.20138/1997, by the learned XV Additional Chief Metropolitan Magistrate, Bangalore City. After trial, learned Magistrate, by a Judgment dated 17.06.2003, convicted the petitioners and respondent No.2, for the offence punishable under S.138 of the Act and sentenced the accused to pay fine of Rs.70,00,000/-and, in default, accused Nos.2 and 3/petitioners herein, were ordered to undergo simple Imprisonment for a period of 6 months. Out of the recovered fine amount, Rs.69,75,000/-was ordered to be paid to the complainant/respondent No.1 herein, as compensation. 2. Accused Nos.2 and 3 filed Crl.A.No.381/2003, in the City Civil & Sessions Court, Bangalore City. The appeal was assigned to the Fast Track Court -II, Bangalore City. Learned Presiding Officer of the Fast Track Court, by a Judgment dated 13.10.2006, allowed the appeal in part. The conviction of the accused was confirmed. However, the fine amount was reduced to Rs.65,50,000/-. The fine amount, if not paid, accused Nos.1 and 2 were directed to undergo S.I. for 6 months. If, fine amount of Rs.65,50,000/-is recovered, the same was ordered to be paid as compensation to the complainant. 3. Sri S.G. Bhagavan, learned advocate, firstly, contended that the Appellate Court has conducted itself injudiciously, since, it has not even gone into the aspects of the matter argued before it, particularly, with regard to, (i) the maintainability of the complaint; (ii) authority to institute the complaint and (iii) Ex.P.22 -Account Extract, being in loose sheets. He submitted that, not even a reference has been made to the decisions of the Apex Court and this Court, copies of which were furnished and reliance was placed during the course of arguments. He further submitted that the appeal has been ‘disposed off’, without ‘deciding it’ in the manner known to law, which has resulted in miscarriage of justice. Secondly, the Judgment of the Appellate Court is vitiated, since, on 04.08.2006, arguments of the appellants were heard and the absence of the learned advocate for the 1st respondent was noted and the appeal was posted to 18.08.2006, for pronouncement of Judgment. The Judgment being not ready, the appeal was adjourned to 31.08.2006. Secondly, the Judgment of the Appellate Court is vitiated, since, on 04.08.2006, arguments of the appellants were heard and the absence of the learned advocate for the 1st respondent was noted and the appeal was posted to 18.08.2006, for pronouncement of Judgment. The Judgment being not ready, the appeal was adjourned to 31.08.2006. An application, copy of which was not served on the advocate for the appellants, having been filed in the appeal by the 1st respondent on 28.08.2006 i.e., seeking preponement of the case, the appeal has been preponed without notice to the appellant and posted to 31.08.2006 and the matter having been adjourned thereafter on few occasions, by wrongly showing the advocate for the appellants as having been heard, the Impugned Judgment, which is perverse and illegal, has been passed. Thirdly, without considering the matter in accordance with law and without assigning reasons, the finding of guilt erroneously recorded was upheld and modified sentence imposed, which are against the law, the facts & probabilities of the case. 4. On the other hand, Sri T. Suryanarayana learned advocate, appearing for the 1st respondent, supported the impugned Judgments and contended that the Appellate Court has applied its mind in regard to the record of the case, before confirming the conviction. 5. The point for consideration is; Whether the proceedings in the appeal and the Judgment passed by the Appellate Court are vitiated? 6. The order sheet of Crl.A.No.381/2003, dated 04.08.2006 shows that, advocate for appellants addressed the arguments. Left hand side column shows that the learned Presiding Officer has made a note of the contentions urged and also the decisions, on which reliance was placed. Absence of advocate for respondent has been recorded. The case was posted for Judgment by 18.08.2006. Finding that, appeal memo was not available in the file, the Bench and Pending Assistants were directed to trace and put up the same along with their explanation. On 18.08.2006, by administering a warning to Pending and Bench Assistants, the Judgment being not ready, appeal was adjourned to 31.08.2006. On 28.08.2006, advocate for the complainant has filed application for preponement of the case. The application does not show the acknowledgment of service on the advocate for the appellants. The appeal was posted to 31.08.2006 and time having been prayed on behalf of respondent No.1, appeal was adjourned to 01.09.2006. On 28.08.2006, advocate for the complainant has filed application for preponement of the case. The application does not show the acknowledgment of service on the advocate for the appellants. The appeal was posted to 31.08.2006 and time having been prayed on behalf of respondent No.1, appeal was adjourned to 01.09.2006. The order sheet shows that, on 01.09.2006 and 08.09.2006, advocate for the appellants as having been heard. The order sheet dated 18.09.2006 shows that, both sides were heard and case was posted for Judgment. Proceedings of 30.9.2006 shows that, file was not sent to Home Office and the office was directed to send the same and the case was adjourned to 13.10.2006. 7. Sri S.G. Bhagavan, learned advocate, who appeared for the appellants in the said appeal, has filed an affidavit dated 06.11.2006 stating that, copy of the preponement application was not served on him and he was not heard in the matter. He has further stated that, since, he had completed his arguments on 04.08.2006 and the matter was posted for Judgment, he did not appear before the Appellate Court thereafter and did not address the arguments & the proceedings as reflected in the order sheet dated 01.09.2006, 08.09.2006 and 18.09.2006 is incorrect. No counter has been filed to the said affidavit. Learned advocate for the 1st respondent did not dispute the statement of Sri S.G. Bhagavan, made in the said affidavit. 8. Perused the record and the Judgment passed by the Appellate Court. I do not think there is any application of mind in regard to the grounds of appeal and the contentions raised by the learned advocate for the appellants during the course of arguments, the gist of which and the case law cited has been noted in the left hand side column of the order sheet of the case by the learned Judge. The Appellate Court has not alluded to and no reference has been made to the contentions urged for consideration. The Sessions Court being the final Court of fact, is required to re-appraise the evidence with reference to the grounds of appeal or the contentions urged at the time of hearing of the arguments. Passing of a considered and reasoned order is imperative. Misdirection adopted by the learned Appellate Judge is apparent. The manner in which the appeal has been dealt with is not the correct way to deal with the appeal. Passing of a considered and reasoned order is imperative. Misdirection adopted by the learned Appellate Judge is apparent. The manner in which the appeal has been dealt with is not the correct way to deal with the appeal. The criticism to the Appellate Judgment is well founded. The Judgment passed by the learned Appellate Judge is vitiated. In view of the foregoing, the petition is allowed and the Judgment passed in Crl.A.No.381/2003 dated 13.10.2006 by the learned Presiding Officer, FTC-II, Bangalore City is set aside and the matter is remanded to the City Civil & Sessions Court, Bangalore City, for consideration and decision, keeping in view the observations made supra and in accordance with law. Since, the matter is old, in order to expedite the hearing, parties are hereby directed to appear before the Appellate Court on 31.08.2012 and receive further orders. The Appellate Court is directed to decide the appeal before 15th December, 2012. Each of the petitioners have deposited Rs.5,00,000/-, pursuant to an interim order dated 21.11.2006 passed in this petition. Registry is directed to invest the said sum in Fixed Deposit initially for a period of 6 months and renew the same for further period, in case the lis between the parties does not come to an end within the maturity period.