- 1 - NC: 2025:KHC-D:3401 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. … RESPONDENT (BY SMT.GEETHA K.M @ PAWAR, ADVOCATE) 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: MALLIKARJUN RUDRAYYA KALMATH Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Date: 2025.02.21 14:52:37 +0530 - 2 - 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 - 3 - NC: 2025:KHC-D:3401 CRL.RP No. 100147 of 2023 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 - 4 - NC: 2025:KHC-D:3401 CRL.RP No. 100147 of 2023 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 - 5 - NC: 2025:KHC-D:3401 CRL.RP No. 100147 of 2023 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 - 6 - NC: 2025:KHC-D:3401 CRL.RP No. 100147 of 2023 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 - 7 - NC: 2025:KHC-D:3401 CRL.RP No. 100147 of 2023 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. - 8 - NC: 2025:KHC-D:3401 CRL.RP No. 100147 of 2023 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 List No.: 1 Sl No.: 26