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2024 Supreme(Online)(Kar) 38359
IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 5TH DAY OF JANUARY, 2024 BEFORE THE HON'BLE MR JUSTICE K.NATARAJAN WRIT PETITION NO. 4801 OF 2023 (GM-RES)
BETWEEN:
1. M/S AVIGHNA ENTERPRISES NO.112/8, BULL TEMPLE ROAD, K.G.NAGAR, BENGALURU - 560 019.
A REGISTERED PARTNERSHIP FIRM REPRESENTED BY ITS PARTNERS, THE PETITIONER NO 2 TO 4.
2. SMT. TRIVENI SUNIL AGED ABOUT 45 YEARS, W/O B S SUNIL, R/AT NO.3132, C.K.GARDEN, WHEELERS ROAD, EXTENSION CROSS, Digitally signed by VEDAVATHI A K NEAR BANASWADI RAILWAY STATION, Location: High COOK TOWN, ST THOMAS TOWN POST, Court of Karnataka BENGALURU - 560 084.
PRESENTLY R/AT C2, 101, C BLOCK, VAISHNAVI NORTH APARTMENT, KEMPAPURA, HEBBAL, BENGALURU - 560 024.
3. SMT. SWETHA TULASI B AGED ABOUT 41 YEARS, W/O B. BALAJI, R/AT NO.63, 2ND CROSS, SVK LAYOUT, BASAVESHWARA NAGAR, BENGALURU - 560 079.
4. SMT. G.R.VAIBHAVA VARDHINI W/O R.D.ADARSH, AGED ABOUT 35 YEARS, R/AT NO.149, 5TH MAIN, 6TH CROSS, NEAR IBP PETROL BUNK, KEB LAYOUT, SANJAY NAGAR, RMV EXTENSION, BENGALURU - 560 094.
…PETITIONERS (BY SRI. JEEVAN K., ADVOCATE)
AND:
SRI. C K SATISH S/O SRI. KODANDARAMA SETTY C K, AGED ABOUT 45 YEARS, R/AT OLD NO 208, NEW NO 18, G-1, 4TH CROSS, 9TH MAIN, 2ND BLOCK, JAYANAGAR, BENGALURU - 560 011.
…RESPONDENT (NOTICE TO RESPONDENT IS DISPENSED WITH)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA READ WITH SECTION 482 OF CR.P.C PRAYING TO QUASH THE IMPUGNED ORDER ISSUING N.B.W DATED:28.07.2022 VIDE ANNEXURE-E PASSED BY THE LEARNED XVI ADDL. CHIEF METROPOLITAN MAGISTRATE IN C.C NO 20650/2020 IN THE ENDS OF JUSTICE AND EQUITY.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Looking to the facts and circumstances of the case, issuing notice to the respondent is dispensed with.
2. This petition is filed by the petitioner/accused Nos.1, 2, 3 and 4 under article 226 and 227 of Constitution of India read with 482 of Cr.P.C., for quashing the order of issuing NBW as against the petitioners on 28.07.2022 in C.C.No.20650/2020, before the XVI Additional Chief Metropolitan Magistrate.
3. Heard the arguments of learned counsel for the petitioners.
4. The case of the petitioners is that the petitioners have faced the trial in C.C.No.20650/220650 and during the pendency of the criminal case, both the complainant and the petitioners have entered into compromised before the Lokadalath and filed joint memo dated 25.6.2022. Accordingly, the joint memo was accepted by the judicial conciliator and advocate conciliator and there was a specific order, that if the amount is not paid, it can be recovered as per the provision of section 421 read with 431 of Cr.P.C. After the disposal of the case, once again the Criminal case was continued. Later, when the case was called out on 25.07.2022 and 28.07.2022 the complainant was present, it was noted but the accused was absent on 28.7.2022. Hence, NBW has been issued against these petitioners and ordered to put up after execution, which is under challenged.
5. Having heard the arguments and perusal of the records, which reveals once the matter has been settled before the Lokadalath an award also has been passed on 25.6.2022, it becomes decree. The complainant is required to recover the amount by filing the execution petition under the provisions of sections 421 read with 431 of Cr.P.C. Such being the case, the question of issuing NBW in the same case, does not arises. Once the matter has been disposed, the question of taking up the case before the court and issuing NBW and continuing the proceedings is not correct. In catena of decisions passed by this court, it has been held that the award passed in the Lokadalath is decree and it is executable one. However, it should be recovered as per provision, under Sections 421 and 431 of Cr.P.C. The very Lokadalth order passed by the conciliators itself has stated, if the accused has not paid the money, it has to be recovered as fine, as confronted under Sections 421 read with 431 of Cr.P.C. In the connected matter this court also taken similar in Writ Petition.No.4763/2023 (GM- Res) dated 17.04.2023. Such being the case, issuing NBW against the petitioner for non-payment of amount, does not arises.
Accordingly, this petition is hereby allowed.
The order of issuing NBW in the name of the petitioners in the proceeding in C.C.No.20650/2020 dated 28.07.2022, is hereby quashed.
However, respondents are having liberty to file the petition under Section 421 read with 431 of Cr.P.C. for executingthe decree/award by filing separate Miscellanies case.
