Karnataka High Court: Plea Seeking to Quash Section 138 Negotiable Instruments Act Conviction Not Maintainable

Karnataka High Court: Plea Seeking to Quash Section 138 Negotiable Instruments Act Conviction Not Maintainable

The Karnataka High Court observed that the High Court can entertain Section 482 of Code of Criminal Procedure, 1973 (Cr.P.C.), if the complaint is dismissed for non-prosecution or dismissed for default under section 256 of Cr.P.C., the said petition filed under Section 482 of the Cr.P.C., seeking to quash conviction to an accused under the Negotiable Instruments Act was not maintainable.

In the present case, a petition was filed by the petitioner/accused under Section 482 OF Cr.P.C for setting aside the judgment of conviction and sentence passed by the Additional Chief Metropolitan Magistrate, Bengaluru dated 2.1.2023 for having convicted for the offence punishable under Section 138 of Negotiable Instruments Act, 1881 (hereinafter referred as 'NI Act').

The office raised the objection regarding maintainability of this petition filed under section 482 of Cr.P.C., as the petitioner being the accused convicted in the trial court, requires to file appeal under section 374 of Cr.P.C.

The counsel appearing for the petitioner contended that the criminal petition filed under section 482 of Cr.P.C is maintainable, even though the statutory right of the accused for filing appeal is available.

The single judge Justice K. Natarajan noted that the instant petition was filed for setting aside the judgment of conviction and sentence passed by the Trial Court.

The Court at the very outset remarked, "this court entertaining 482 of Cr.P.C, where there is no evidence led by the parties and there is no final judgment of conviction or acquittal after the trial in those cases. Therefore, the High Court can entertain Section 482 of Cr.P.C, if the complaint is dismissed for non-prosecution or dismissed for default under section 256 of Cr.P.C."

Whereas, in the present case the Court noted that the petitioner was challenging the conviction and sentence passed by the Trial Court by exercising the power under section 255 of Cr.P.C. Therefore, the petitioner was required to file appeal under section 374 (2) of Cr.P.C before the Sessions Judge, where the first appellate court required to re-appreciate evidence on record and pass the final judgment and thereafter the aggrieved parties can approach high court under section 397 of Cr.P.C, if any concurrent finding of both the Court below.

The Court further emphasized that it cannot re-appreciate the evidence on record, both on facts and law, which is required to be dealt with, by the Appellate Court in the appeal under Section 374 of Cr.P.C. It stated, "this Court cannot re-appreciate any evidence on record and give findings, it is only extra ordinary power for quashing the proceedings, since the first appeal is nothing but continuation of original proceedings in appellate court."

The Court asserted that if this petition filed under section 482 of Cr.P.C, is entertained, the respondent would be deprived of right of appeal before the Appellate Court and thereafter parties can approach the High Court.

The Court averred, "it appears the accused are following these back door tactics in order to avoid the interim compensation going to be imposed by the first appellate court under section 148 of NI Act."

Accordingly, it dismissed the petition.