Extracted from the PDF above. The PDF is authoritative.
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HC-KAR NC: 2026:KHC:15734 CRL.RP No. 657 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF MARCH, 2026 BEFORE THE HON'BLE MR. JUSTICE V SRISHANANDA CRIMINAL REVISION PETITION NO. 657 OF 2021 (397(Cr.PC) / 438(BNSS)-) BETWEEN:
NAGARAJA RAO C. H.
AGED 52 YEARS, CHARTERED ACCOUNTANT S/O LATE C H RAO NO.1247, 2ND CROSS, KRISHNAMURTHYPURAM MYSORE - 570 004
&PETITIONER (BY SRI. SACHIN MAHDEV HEGDE., ADVOCATE FOR SRI. SACHIN B.S., ADVOCATE)
AND:
1.
S. K. SHESHACHANDRIKA AGED 78 YEARS, R/AT KABINI, KHADI LAYOUT NO.18, 2ND MAIN, BSK MAIN ROAD, KATRIGUPPA - 560 085 BENGALURU
2.
B GOPALAKRISHNA UPADHYA S/O SRINIVASA UPADHYA AGED 64 YEARS, R/AT 2-3-10-B VYASA KUTEERA BEHIND HOTEL KARAVALI BANNANJE ADI UDUPI AMBALAPADI POST UDUPI - 576 103
Digitally signed by SHWETHA RAGHAVENDRA Location: HIGH COURT OF KARNATAKA
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3.
ARUN KUMAR AGED 47 YEARS, S/O DHEERENDRA AYACHITH #33, 12TH CROSS, 12TH MAIN RAGHAVENDRA BLOCK, SRINAGAR BENGALURU - 560 050
4.
DR KRISHNA S/O S K SHESHACHANDRIKA AGED 43 YEARS, R/AT KABINI, KHADI LAYOUT NO.18, 2ND MAIN, BSK MAIN ROAD, KATRIGUPPA BENGALURU - 560 085
5.
M S GANGAPRASAD S/O SRINIVASAMURTHY AGED 48 YEARS, HOUSE NO.11-13-544/2 FLAT NO. 1, YADHAV NAGAR COLONY, SRK PURAM HYDERABAD - 500 035
6.
STATE OF KARNATAKA BY UDUPI TOWN POLICE STATION UDUPI REPRESENTED BY SPP HIGH COURT BUILDING BANGALORE
&RESPONDENTS (BY SRI. K. NAGESHWARAPPA., HCGP FOR R6;
SRI. AJITH ANAND SHETTY., ADVOCATE FOR R2 & R5;
(R1, R3 & R4 SERVED)
THIS CRL.RP FILED U/S.397 R/W 401 CR.P.C PRAYING TO SETTING ASIDE THE IMPUGNED ORDER DATED 19.03.2020 PASSED IN THE MEMO DATED 04.12.2019 FILED BY THE PETITIONER IN C.C.NO.90/2014 ON THE FILE OF THE COURT OF THE ADDITIONAL CIVIL JUDGE AND JMFC, UDUPI VIDE DOCUMENT NO.1 IN SO FAR AS NOT TAKING COGNIZANCE OF THE OFFENCE P/U/S 397,364A,307 OF IPC AGAINST THE ACCUSED.
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THIS CRL.RP, COMING ON FOR ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE V SRISHANANDA
ORAL ORDER Heard Sri.Sachin Madev Hegde., learned counsel appearing for Sri.B.S.Sachin for the petitioner. Defacto complainant is the revision petitioner, who has prayed following reliefs in the petition; Please to allow the criminal revision petition by setting aside the impugned order dated: 19.03.2020, passed in the memo dated: 04.12.2019 filed by the petitioner in CC No.90/2014 on the file of the Court of the Additional Civil Judge and JMFC Udupi, vide Document No.1 in so far as the not taking cognizance of the offence punishable under Section 397, 364-A and 307 of IPC against the accused, in the interests of justice. 2. Facts in the nutshell which are utmost necessary for disposal of the present revision petition are as under:
2.1. Private complaint came to be filed under Section 200 of the Cr.P.C., by the petitioner-herein alleging the commission of the offences punishable under Sections 120-A, 420, 441, 442, 379, 506, 350, 386, 405, 410, 425,
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390, 108 and 141 read with Section 34 of IPC against the respondent-herein. 2.2. Since complainant wanted to prove the case by himself, learned trial Magistrate recorded the sworn statement of the petitioner. 2.3 In the said sworn statement, it has been mentioned that the petitioner was born and brought up at Mysore and his father was a retired Sub-registrar. He has further stated before the Court that he is a Chartered Accountant and has expertise in religious matters and he is a Vidvamsa, and that he teaches Vedanta to his disciples. He has also stated that he has given the astrological advice for more than 3000 people free of cost and has taught about 500 disciples free of cost. 2.4. He has further stated that accused No.5, viz., an MBBS doctor by name Dr.Krishna, approached the petitioner and requested the petitioner to accept him as a disciple and as such, he has accepted him as his disciple
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and has taught him medicine also. Thereafter, said Dr.Krishna got a seat in Baroda for pursuing his Master9s degree in medicine and thereafter accused No.5 stayed in the House of the petitioner for about three months. 2.5.
It is also contended that he has paid to the tune of Rs.35,000/- towards the fees for the MD degree of Accused No. 5. In the year 2004, accused No.5 joined as a Doctor in Kanhangad Hospitals and was having salary of Rs.15,000/- per month. 2.6. Since, the said hospital was running under loss, there was a public advertisement for sale of the said hospital. The petitioner with the help of others purchased the same and fixed the necessary charges in the hospital for the treatment of the patients. It is also stated that certain equipment was imported and the hospital was properly maintained. 2.7. On 11.08.2011, the complainant was having serious health issues. However, on 23.08.2011, though he
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had no good health, he visited Udupi and there was certain financial transactions. In his detailed sworn statement running into 17 pages, he has stated that all the accused persons had deceived him. 2.8. In support thereof, the complainant examined several witnesses. Smt.Lakshmi is examined as PW-2, who has also stated in line with the PW-1 and she is the sister of PW-1, Sri.Raghunandan, examined as PW-3, is the brother-in-law of PW-1, who is also deposed in line with his wife Lakshmi. Yet another person by name Sri.Sripathi Rao, examined as PW-4, who is a process Server. Sri.Vinayaka Hegde, who is examined as PW-5, who stated before the Court that he has worked as a Manager in the company run by the complainant and also stated about the misdeeds committed by the other accused. Smt.Vani Rao, a resident of Mysore, who is the mother of the complainant is examined as PW-6. 2.9 Based on those sworn statements of the complainant and others, the documents that are placed on
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record, learned trial Magistrate took cognizance of the offences under Sections 120-A, 420, 441, 442, 379, 506, 350, 386, 405, 410, 425, 390, 108 and 141. 2.10. Thereafter, a memo came to be filed by the complainant on 04.12.2019 requesting the Court to proceed with the direction issued by this Court in Crl.R.P.No.172 of 2017. 3.
Learned trial Judge after hearing the parties on the said memo passed an order on 19.03.2020 which reads under; Orders on memo filed by the complainant dated 4-12-2019. The complainant has filed memo dated 4-12-2019 contending that Hon'ble court may kindly proceed as per the direction issued by the Hon'ble High Court of Karnataka after hearing in the ends of justice. 2. Heard both sides on memo dated 4-12-2019 and Advocate for complainant filed notes of argument in addition to his oral submission. 3. The factual matrix of the case are that, the complainant has filed a private complaint under Section 200 of Cr.P.C. against the accused Nos.1 to 6 for the
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alleged offences punishable under Sections 120A, 420, 441, 442, 379, 506, 350, 386, 405, 410, IPC. My 425, 390, 108, 141 r/w. 34 of predecessor-in-office took cognizance of the aforesaid offences after recording the sworn statement of complainant and his witnesses issued summons to the accused persons vide order dated 16-1-2014. After appearance of the accused persons, the court has posted the case for evidence before charge since the case is registered under private complaint and warrant trial case, Subsequently, on 2-7-2015, the complainant has filed a memo contending that the materials produced in the complaint and the sworn statement of the complaint attracts offence punishable under Sections 397, 364A, 307 of IPC, the said offences are exclusively triable by court of Session as such this court has no jurisdiction to try the offences and prayed to commit the case to the sessions Court. The said memo has been objected by the accused by filing objections contending that already the cognizance has been taken by the court and at this juncture taking the cognizance of the offences punishable under Section 397, 364A and 307 of IPC is not maintainable. This court after hearing both the counsel dismissed the said memo vide
order dated 8-8-2016. Being aggrieved by the same, the complainant has filed criminal Revision petition No.172/2017 before the Hon'ble High Court, the said criminal revision petition was came to be allowed on 15-10- 2019 and the Hon'ble high court has set aside the order passed by this court and directed to this court to consider if material is there, in that event it can proceed as observed in accordance with law. If the said offences are liable by
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the court of Sessions, then commit the said case averments Now once again the to the jurisdiction court. complainant has come up with the memo praying this court to proceed as per the directions issued by the Hon'ble High court of Karnataka after hearing in the ends of justice. The learned counsel for the complainant argued that the made in the complaint and sworn statement of the complainant clearly attracts the offences punishable under Sections 397, 364A and 307 of IPC, which are exclusively triable by the court of Session, but while taking cognizance, this court has left out to take cognizance of those offences even though there are materials to take cognizance of the offences publishable under Sections 397, 364A, 307 of IPC, therefore, he was constrained to file memo in order to brought the notice of court. However the said memo came to be dismissed. He further argued that during the time of trial or enquiry, if any offence is made out which is exclusively triable by th court of Session, this court bound to commit the case under Section 323 of Cr.P.C. In the present case also it is the stage of enquiry and if this court perused the materials on record and come to the conclusion that Session triable offences are made out then case has to be committed to court of Session. He argued that even on bare reading of the complaint averments and sworn statement there are prima facie materials to take cognizance of the offence punishable under Sections 397, 364A and 307 of IPC against the accused persons, Hence, he prayed to commit this case to court of Session under Section 323 of Cr.P.C.
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4.
On the other hand the learned counsel for the accused vehemently submitted that on perusal of the complaint averment, the alleged offence has been taken place 4 months earlier to the date of on 10-1-complaint. Admittedly complaint filed 2012. That means complainant filed complaint belatedly and after though, even though he has not stated in the complaint that accused persons have committed offences punishable under Sections 397, 364A and 307 of IPC. Only after recording sworn statement and after summoning of accused and when the case posted for EBC, he came up with memo that this court ought to have commit the case to court of Session since some of the offences are triable exclusively by court of Session. The complainant has filed said memo only to harass the accused and he has no Intention to give evidence to reach logical end of the case. 5. I have gone through the order passed by the Hon'ble High Court, wherein at page No. 16 and 17, the Hon9ble High Court observed that "in this behalf it is brought to my notice that so far the charge has not been framed and case is posted for hearing before the charge. At that time the trial court can look into all the aspects whether the ingredients of provisions of Sections 397, 307 and 364 of IPC are there in the complaint or in the sworn statement, if It comes to the conclusion that ingredients of all the above offences were in existences already, then under such circumstances, it can commit the case by exercising the power under Section 323 of Cr.P.C. and there is no question of framing the charge by the Session
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Court, if the said Ingredients are not existing, then under such circumstances, it can proceed in accordance with law by framing the charge.
Admittedly the present case is warrant case instituted otherwise than the police report, hence, this court posted the case for evidence before charge and the stage of hearing before charge has not yet reached. If after evidence before charge and at the time of framing of charge, if ingredient of above said offences are found, certain case will be committed to court of Session under Section 323 of Cr.P.C. Now it is too premature to consider the submission of complaint in view of the observation made by the Hon'ble High Court in the above said criminal revision petition. complainant is hereby
directed to Therefore, the lead evidence before charge, if at all ingredients of the offence under Section 397, 364A and 307 of IPC are made out or found materials in the complaint or sworn statement, under such circumstances, this court without framing charge case will commit to the court of Session. Accordingly, submission of complaint to commit the case to court of Session at this stage is rejected as it is too premature. 4. The said order is assailed in this revision on the following grounds: GROUNDS ø The Impugned Order passed by the Learned JMFC is improper, incorrect and also the same is against the
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mandate of Section 209 of Crl.P.C. and also unsustainable under law. ø The Learned JMFC failed to note that, the offences alleged against all the Accused is one triable exclusive by the court of Sessions. In order to make the exercise of power under Section 202 of Crl.P.C., the Learned JMFC need not make any elaborate preliminary enquiry by directing the Petitioner to lead hearing before charge which is now done in the Impugned Order at Document No.1 which prima facie illegal. ø The Learned JMFC fails to take to note of the Order passed in Crl.P.No. 172/2017 passed by this Hon'ble Court in the earlier instance on the Petitioner filed by the Petitioner before this Hon'ble Court in which this Hon'ble Court at Paragraph No. 17 of the Order at Document No.2 clearly opined that if the Petitioner made out a prima facie case, the case of the Petitioner should be committed to the Sessions Court automatically by exercising the power under Section 323 of Crl.P.C. In the said Order. this Hon'ble Court also opined that once the JMFC had already collected the evidence of the Petitioner, the court commit the case to the Jurisdictional can transfer Sessions Court. In the case on hand, the Learned JMFC failed to note that there is already elaborate evidence lead in by the Petitioner as CWI by producing as many as 22 documents on his side. So also, his witnesses have been examined as CW2 to 6.
Therefore, the finding of the Learned JMFC that, the Petitioner should lead further
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evidence relating to the offence which enable him to refer the matter to the Court of Sessions is highly improper and incorrect. ø The Learned JMFC did not go into the merits or demerits of the complaint or the pleadings of the Petitioner when the complaint prima facie discloses the commission of offences punishable under Section 397, 364A and 307 of IPC. To substantiate this ground, this Hon'ble Court in Crl.P.No.7376/2014 also opined that, the Petitioner has made out a strong prima facie case to Court in proceed against the accused. All the observation and findings made by this Hon'ble Crl.R.P.No.172/2017 and Crl.P.No. 7376/2014 has been completely ignored and overlooked by the Learned JMFC. ø The Learned JMFC failed to note that there is no question of Petitioner leading further evidence when the evidence of Petitioner is already on record and taking into
consideration of the said evidence along with documentary proof along with the evidence of his witnesses, the Learned JMFC can definitely reach to his conclusion to commit the case for trial to the court of Session which undoubtedly the Petitioner has made necessary grounds for referring the case for committal. In this regard, the Learned JMFC not required to hold any preliminary enquiry under Section 323 of Crl.P.C. for evaluation of evidence.
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ø The Learned JMFC failed to note that, when the case of the Petitioner exclusively triable by the Court of Session, the Learned JMFC would be exceeding his jurisdiction if he undertakes to weigh the evidence meticulously which the Learned JMFC intended to do in the case of the Petitioner. The Learned JMFC is not required to balance and weigh evidence as done by Trial Court for the purpose of commitment.
ø The Learned JMFC failed to note that by directing the Petitioner to lead evidence before Charge under Section 323 of Crl.P.C., he has no jurisdiction to formulate his decision upon the sufficiency insufficiency or of the material which he wanted to do is completely against the mandate of Section 209 of Crl.P.C.
ø The Learned JMFC has completely ignored the important decisions rendered by this Hon'ble Court as well as Hon'ble Apex Court which has been put to reliance on the side of the Petitioner which has been neither looked into nor taken into account on the side of the Petitioner and the question of law on this subject which is well settled has been completely brushed aside. There is no justification for the Learned JMFC to neglect the decisions which has been quoted to the point and if the said decisions would have been taken in to consideration, there would be no occasion for the Learned JMFC to commit the error which is apparent on its face which
Order requires interference by way of indulgence at the hands of this Hon'ble Court.
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ø The finding of the Learned JMFC that, the case needs further evidence by the Petitioner and it is the Petitioner who insisted to have the exercise of power under Section 323 of Crl.P.C is completely false which the Petitioner never demanded. As could be seen from the memo dated:06.12.2019, the Petitioner was insisting for the trial to be committed by the Court of Sessions which plea has been refused by improperly holding that the prayer of the Petitioner is premature and liable to be rejected. Therefore, the Learned JMFC has committed manifest error by refusing the prayer of the Petitioner to commit the crime of the accused to be tried by the Sessions Court.
ø The Learned JMFC mechanically in a vague manner passed the Impugned Order by failing to exercise power vested with him when the complaint submitted by the Petitioner in support of the oral and documentary evidence which would enable him to refer the case for trial by the Court of Sessions. The Learned JMFC failed to note that, it is the obligation for him under Section 209 of Crl.P.C. to commit the case automatically to the Court of Session which is a mandate of law by the judgments rendered by this Hon'ble Court as well as Hon'ble Apex Court.
ø Under Section 209 of Cri.P.C. the Learned Magistrate has to examine the police report and other documents and has to find out whether the offence is exclusively triable
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by the Court of Session. In the case on hand, the Learned JMFC is not supposed to make scrutiny of the evidence on record nor he could do an preliminary enquiry.
ø The Learned JMFC completely ignored to take the evidence on record, documentary evidence and pleadings of the case and improperly held that, the prayer of the Petitioner is premature at this stage and improperly rejected the same for referring the case to the Court of Sessions when the offence made out would completely disclose and attract the ingredients which would definitely needs the trial before the Court of Sessions.
ø Viewed from any angle if the impugned order is glanced in any manner, the said
order does not merit
consideration as the said order is passed without considering the seriousness of offence committed by the Accused which are exclusively triable by the Sessions Court and the Impugned Order is passed against the mandate of law of evidence, Section 209 and 323 of Crl.P.C. and the Impugned Order being unsustainable under law is liable to be quashed
4.1. Sri.Sachin Madev Hegde, learned counsel for the petitioner, reiterating the grounds urged in the petition would contend that the learned Trial Judge in a mechanical manner has passed the impugned order on the memo filed
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by the petitioner without even referring to the salient aspects and the directions which has been issued by this Court in Crl. R.P. No. 172 of 2017 and posted the matter for evidence before framing of charge has resulted in grave miscarriage of justice and sought for allowing the revision petition. 4.2. Per contra, Sri.Ajit Anand Shetty., learned counsel appearing for respondents No.2 and 5, would submit that the impugned order is perfectly in line with the directions issued by the this Court in Crl.R.P.No.172 of 2017, having regard to the nature of proceedings and the stage that is required in the attendant facts and circumstance of the case. 5. Having heard the arguments of both sides, this Court perused the material on record meticulously. On such perusal of the material on record, on an earlier occasion parties have approached this Court in Crl.R.P.No.172 of 2017 to set aside the order dated 08.08.2016 passed in CC No.90/2014 on the file of the
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Additional Civil Judge and JMFC, Udupi whereby cognizance was taken for the offences punishable under Section 397, 364A and 307 of IPC. 6. This Court, after hearing the parties on merits, allowed the revision petition and set aside the order taking cognizance dated 08.08.2016 passed by the trial Magistrate and inter alia holding in para 18 as under;
18. Taking into consideration of the above said facts and circumstances, I feel that the order passed by the Court below by its order dated 08.08.2016 is erroneous and no such order could have been passed, dismissing the memo.
Filing memo was not warranted and the Court ought not to have passed a separate order, that too when the matter was pending for consideration of hearing before charge. The observation that already cognizance has been taken to certain offences and there is no need to take cognizance to other offence is not correct. This aspect ought to have been considered at the time of framing of the charge and at the time of hearing before the charge that too when the matter was kept for the purpose of hearing about charge. Keeping in view the above observation, order dated 08.08.2016 passed by Additional Civil Judge and JMFC, Udupi is set aside and the trial Court is directed to consider if material is there, in that event it can proceed as observed in accordance with law. If the said offences are triable by the
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Court of Sessions then commit the said case to the jurisdictional Court. 7. Therefore, the trial Magistrate thereafter took cognizance for the aforesaid offences. Now the grievance of the petitioner is that trial Magistrate has not followed the directions issued by the Co-ordinate Bench of this Court in Crl.R.P.No.172 of 2017. 8. As could be seen from the material on record, the private complaint is of the year 2012 . The petitioner himself has approached this Court in Crl.R.P.No.172 of 2017 with regard to taking of cognizance with regard to the offences under Section 397, 364 and 307 of IPC. 9. Pursuant to the order passed by the Co-ordinate Bench of this Court in the said revision petition on 15.10.2019 fresh order of cognizance has been taken by the learned trial Magistrate for the aforesaid offences. 10. Thereafter, the case is posted for evidence before framing of charge.
It is pertinent to note that order taking
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cognizance under Sections 397 and 307 of IPC was questioned by the very same petitioner which was set aside in the said Crl.R.P.No.172 of 2017. 11. Again, he has sought for the same prayer in this revision petition. However, when the
order taking cognizance with regard to the offence under Section 397, 364-A and 307 of IPC was set aside by the Co-ordinate Bench of this Court, such a prayer by the petitioner would not arise for consideration. 12. If it is the case of the petitioner that, apart from the offence under Sections 397, 364-A and 307 of IPC, few more offences are also to be made, then certainly the stage of consideration of such a prayer is after recording the evidence of the complainant and other witnesses before framing the charge. 13. In other words, based on the material on record, when the trial Magistrate has taken cognizance for the offences under Sections 397, 364-A and 307 of IPC which
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was questioned by the revision petitioner, he cannot now turn around and contend that the order of the trial Magistrate is incorrect. 14. Moreover, offence under Section 397 of IPC is not a charging section at all. Insofar as Section 364-A of IPC is concerned, kidnapping of a person for ransom, should be established. Such ingredients are not forthcoming from the material on record. If there is additional evidence that could be placed by the complainant and other witnesses, the stage for taking cognizance of such an offence would arise later. So also, for the offence under Section 307 of IPC. 15. Accordingly, this Court does not find any good ground whatsoever to interfere with the order passed by the trial Magistrate. 16. Moreover, no order can be passed on a memo, that too in the criminal proceedings. From the material on record, it appears that the complainant is somehow
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interested in keeping the criminal case pending for one reason or the other rather than proceeding with the case at an early date and get redressed the grievances, if any. 17. Further expressing any opinion with regard to the merits of the matter at this stage is totally unwarranted, as it may affect the rights of the complainant as well as the accused persons in the pending trial. 18.
Taking note of the fact that the private complaint is of the year 2012 and CC itself is of the year 2014, Sri.Ajit Anand Shetty, learned counsel for respondents No.2 to 5 would request the Court to direct the matter to be disposed of in a prescribed timeframe. Learned counsel for the petitioner has no objection and would submit that his client would cooperate for the early disposal. 19. Accordingly, following;
ORDER i. The revision petition is dismissed.
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ii. The matter shall be concluded within upper limit of one and half years from today.
SD/- (V SRISHANANDA) JUDGE
SR List No.: 1 Sl No.: 20