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2019 DIGILAW 382 (KAR)

C. Shekar v. K. Saraswathi

2019-02-08

B.A.PATIL

body2019
JUDGMENT : B.A. Patil, J. The present revision petition has been filed by the petitioner-accused challenging the judgment dated 15.11.2014 passed by the Fast Track Court-IV, Bengaluru City in Criminal Appeal No.195/2013. 2. I have heard the learned counsel for the petitioner accused and the respondent-complainant. 3. The gist of the case of the complainant is that the petitioner-accused and the respondent-complainant are relatives. The petitioner-accused has approached the complainant for hand loan of Rs. 3 lakhs on 30.08.2008 and the same was handed over to the accused by the complainant. The accused promised to return the same within a period of two months but he did not repay and to discharge the said liability, he issued a cheque bearing No.478395 dated 30.10.2008 drawn on HDFC Bank, Malleshwaram Branch, Bengaluru. When the complainant presented the said cheque for encashment, it was dishonored with a shara "account closed" on 27.11.2008. A notice came to be issued to the accused as contemplated under Section 138 of Negotiable Instruments Act, 1881 ('the N.I. Act' for short) and the said notice was also returned as 'not claimed'. Thereafter, the complainant lodged a complaint under Section 200 of Cr.P.C. Thereafter, on appearance of the accused and on recording the evidence of the complainant, the Court below acquitted the accused for the offence punishable under Section 138 of N.I. Act. 4. Being aggrieved by the said order, the complainant preferred an appeal in Criminal Appeal No.195/2013 before the Fast Track Court-IV, Bengaluru City. The said Court by entertaining the said appeal, has allowed the same and convicted the accused and sentenced him to pay a fine of Rs. 4 lakhs and out of fine amount, a sum of Rs. 3,90,000/- was ordered to be paid to the complainant and remaining sum of Rs. 10,000/- to the State. Now being aggrieved by the said judgment, the accused is before this Court. 5. Though this case is posted for admission today, with consent of both the learned counsels, the matter is taken up for final disposal. 6. Several grounds have been urged by the learned counsel for the petitioner but the main ground which has been urged by the learned counsel is that against the order of acquittal, the appeal would lie before the Hon'ble High Court but the complainant has preferred an appeal before the District Court, which is not having any jurisdiction. 6. Several grounds have been urged by the learned counsel for the petitioner but the main ground which has been urged by the learned counsel is that against the order of acquittal, the appeal would lie before the Hon'ble High Court but the complainant has preferred an appeal before the District Court, which is not having any jurisdiction. Though there is no jurisdiction, learned District Judge entertained the appeal and allowed the same by convicting the accused. The said order is nullity in law. As such, the same is not sustainable and prays to set aside the impugned judgment passed by the First Appellate Court. 7. Learned counsel for the respondent submit that though the appeal lies to the Hon'ble High Court but it is only an irregularity not illegality. The Court below after appreciation of the materials placed on record, has come to a right conclusion. He further submitted that the petitioner accused, who appeared before the Court below has participated in all the trial and at that time, he has not raised a single finger by saying the Court is not having any jurisdiction and now at this belated stage, he cannot contend that the Court below was not having any jurisdiction while passing the impugned order. On these grounds, he prays to dismiss the appeal. 8. I have carefully and cautiously gone through the submissions made by the learned counsel appearing for the parties. 9. It is the contention of the learned counsel for the respondent that though the petitioner-accused has participated in the proceedings effectively and has not raised a single finger about the jurisdiction, now he cannot contend that the Court below was not having any jurisdiction. 10. It is well settled principles of law that a Court which is not containing any jurisdiction, if it passes an order, the said order is nullity in the eye of law. It is pure question of law whether an objection is raised or not, it is the duty of the Court to verify as to whether the Court is having any jurisdiction to entertain the said appeal or not. The Court gets jurisdiction only if the said Court is having an authority to pass such orders. In that light, the said contention does not stand and the same is rejected. The Court gets jurisdiction only if the said Court is having an authority to pass such orders. In that light, the said contention does not stand and the same is rejected. The main contention taken by the learned counsel for the petitioner is that against the order of acquittal, an appeal lies before this Court and as such the said order is nullity. For the purpose of brevity, Section 378 of Cr.P.C. reads as under: "378. Appeal in case of acquittal.[(1) Save as otherwise provided in sub-section(2), and subject to the provisions of sub-sections (3) and (5),- (a) the District Magistrate may, in any case, direct the Public Prosecutor to present an appeal to the Court of Session from an order of acquittal passed by a Magistrate in respect of a cognizable and non-bilable offence; (b) the State Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of an acquittal passed by any Court other than a High Court [not being an order under clause (a)] or an order of acquittal passed by the Court of Session in revision.] (2) If such an order of acquittal is passed in any case in which the offence has been investigated by the Delhi Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946 (25 of 1946) or by any other agency empowered to make investigation into an offence under any Central Act other than this Code, 1[the Central Government may, subject to the provisions of sub-section (3), also direct the Public Prosecutor to present an appeal (a) to the Court of Session, from an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence; (b) to the High Court from an original or appellate order of an acquittal passed by any Court other than a High Court [not being an order 1under clause (a)] or an order of acquittal passed by the Court of Session in revision.] (3) [No appeal to the High Court] under subsection (1) or sub-section (2) shall be entertained except with the leave of the High Court. (4) If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court. (5) No application under sub-section (4) for the grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of six months, where the complainant is a public servant, and sixty days in every other case, computed from the date of that order of acquittal. (6) If, in any case, the application under sub-section (4) for the grant of special leave to appeal from an order of acquittal is refused, no appeal from that order of acquittal shall lie under sub-section (1) or under sub-section (2)." 11. On close reading of the Section 378(b) of Cr.P.C., it clarifies that against an order of acquittal, an appeal lies before the High Court. The admitted fact is that an appeal has been preferred before the District Court and the same has been entertained. Under such circumstances, the order passed is a nullity and the same is unsustainable in law. 12. It is submitted by the learned counsel for the respondent/complainant that he may be given liberty to file an appeal before this Court by giving the point of limitation which has been consumed under wrong proceedings as per Article 114 of the Limitation Act. The said period is also going to be covered in this behalf. Keeping this liberty, the respondent/complainant to file an appropriate proceedings before this Court. The impugned judgment dated 15.11.2014 passed by Fast Track Court IV, Bengaluru City in Criminal Appeal No.195/2013 is set aside. Accordingly, the Criminal Revision Petition is allowed.