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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 5^th DAY OF MARCH 2021

BEFORE

THE HON9BLE MR. JUSTICE JOHN MICHAEL CUNHA

CRIMINAL REVISION PETITION NO.79 OF 2015

BETWEEN:

MRS.DIANA FILIPANA SALDANHA,

W/O. NAVEEN SALDANHA,

AGED ABOUT 43 YEARS,

R/AT. HOLI CROSS ESTATE,

HONNEKOPPA, S.M. PET,

CHICKMAGALUR TALUK,

REPRESENTED BY HER:

POWER OF ATTORNEY HOLDER,

MR. NEETHAN H. SALDANHA,

S/O. LATE ANTHONY SALDANA,

AGED ABOUT 44 YEARS,

COFFEE PLANTER, HOLI CROSS ESTATE,

HONNEKOPPA, S.M. PET,

CHICKMAGALUR TALUK

& PETITIONER

(BY SRI: CYRIL PRASAD PAIS, ADVOCATE)

AND

MR.ANTONIO PEREIRA,

S/O. LATE PASCAL S. PEREIRA,

AGED ABOUT 55 YEARS,

BUSINESS MAN, HOUSE NO.160/A,

GODDEA NADDO,

CHINCHINM, SALCETE,

GOA 3 403 601

...

RESPONDENT

(BY SRI.P.D. SUBRAMANYA, AMICUS CURIAE)

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THIS CRIMINAL REVISION PETITION FILED U/S.397 OF

CR.P.C

PRAYING

TO

SET-ASIDE

THE

JUDGMENT

DATED

21.08.2013, PASSED BY THE IInd ADDL. DISTRICT AND

SESSIONS JUDGE, CHIKKAMGALUR IN CRL.A. NO.98/2013, AND

SET-ASIDE THE JUDGMENT DATED 11.01.2013 PASSED BY THE

1^ST ADDITIONAL C.J. AND J.M.F.C. CHIKKAMAGALUR IN C.C.

NO.1713/2006 AND CONSEQUENTLY AFTER SETTING ASIDE THE

ABOVE MENTIONED JUDGMENTS, ALLOW THE COMPLAINT FILED

BY THE COMPLAINANT AND CONVICT THE ACCUSED FOR THE

OFFENCE PUNISHABLE UNDER SECTION 3 138 OF N.I. ACT.

THIS CRIMINAL REVISION PETITION COMING ON FOR

FINAL HEARING THIS DAY, THE COURT MADE THE FOLLOWING:-

O R D E R

This petition is filed under Section-397 of the Code of

Criminal Procedure, 1973 (for short 8Cr.P.C.9), challenging the

order dated 21.08.2013, passed by the IInd Additional District

And

Sessions

Judge,

Chikkamagalur,

in

Criminal

Appeal

No.98/2013, confirming the order dated 11.01.2013, passed by

the First Additional Civil Judge and JMFC, Chikamagalur in

C.C.No.1713/2006.

2.

At the outset, the learned Amicus Curiae appearing

for the respondent / accused raised a preliminary objection

regarding the maintainability of the petition contending that, at

the first instance, the learned JMFC had dismissed the complaint

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lodged by the petitioner under Section-138 of N.I. Act and the

accused was acquitted. As against the acquittal order, the

petitioner was required to prefer an appeal before this Court

under Section-378 of Cr.P.C., but the petitioner approached the

Sessions Court under Section3372 of Cr.P.C. As such, the order

passed by the District Judge itself being without jurisdiction,

revision against the same is not maintainable.

3.

Further, referring to Section 3 401, sub-section-(3)

of Cr.P.C., the learned Amicus Curiae pointed out that this court

while exercising the power under Section3397 of the High Court

is not authorized to covert a finding of acquittal into one of

conviction and in the said circumstance, no relief could be

granted on the petition under Section-397 of Cr.P.C.

4.

In order to appreciate this contention, it is pertinent

to note that at the first instance, criminal action was initiated

against the petitioner by lodging a private complaint under

Section-200 of Cr.P.C., read with Section-138 of N.I. Act said

complaint was presented through the power of attorney of the

complainant. The learned Magistrate took cognizance of the

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offence, recorded the sworn statement of the power of attorney

of the complainant and issued summons to the respondent.

During trial, the power of attorney of the complainant appeared

on behalf of the complainant and his evidence was also recorded.

It is only in the final order, the learned Magistrate dismissed the

complaint mainly on the ground that the complainant Mrs.Diana

Filipina Saldanha was the payee of the cheque and she did not

give any authority to Netheen H. Saldana, the general power of

attorney holder to file the complaint; the power of attorney also

failed to prove that he was authorized to file the complaint on

behalf of the complainant, and further holding that the power