Karnataka High Court
M/S Jyoti Enterprises vs A1 Roofings on 6 December, 2021
Bench: Mohammad Nawaz
1
IN THE HIGH COURT OF KARNATAKA
AT BENGALURU
DATED THIS THE 6TH DAY OF DECEMBER, 2021
BEFORE
THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ
CRIMINAL APPEAL NO. 2 OF 2021
BETWEEN:
M/S JYOTI ENTERPRISES
AT NO.88, 3RD CROSS
KAVERI LAYOUT
DODDABETTAHALLI
VIDYARANYAPURA POST
BANGALORE-560097
REPRESENTED BY ITS PARTNER
TRILOK JHA
SON OF SRI. MOHAN JHA
AGED ABOUT 33 YEARS
...APPELLANT
(BY SMT. TAHURA ANZAN, ADV. For
SRI.P.FREUD RICHARD SON, ADVOCATE(PH))
AND:
1. A1 ROOFINGS
NO.18, N.R.ROAD
BANGALORE-560002
REPRESENTED BY ITS PROPRIETOR
SANJAY GROVER
2. SANJAY GROVER
PROPRIETOR
M/S A1 ROOFINGS
NO.18, N.R.ROAD
BANGALORE-560002.
...RESPONDENTS
(BY SRI. U.NAYAZ PASHA, ADV FOR R1 & R2)
2
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4)
CR.P.C BY THE ADVOCATE FOR THE APPELLANT/S PRAYING
THAT THIS HONBLE COURT MAY BE PLEASED TO SET ASIDE THE
IMPUGNED JUDGMENT DATED 29.02.2020 PASSED BY THE 18TH
ACMM, BANGALORE IN C.C.NO.19382/2014 - ACQUITTING THE
RESPONDENT/ACCUSED FOR THE OFFENCE P/U/S 138 OF
N.I.ACT AND ETC.,
THIS CRIMINAL APPEAL COMING ON FOR ADMISSION,
THIS DAY THE COURT DELIVERED THE FOLLOWING:
ORDER
This appeal is preferred by the complainant against the
order dated 29.02.2020 passed in C.C.No.19382/2014 on the file
of Learned XVIII Additional Chief Metropolitan Magistrate Court,
Bengaluru, whereby complaint filed under Section 138 of
Negotiable Instruments Act came to be dismissed for non-
prosecution.
2. Material on record disclose that a complaint dated
12.03.2014 was filed alleging an offence under Section 138 of
Negotiable Act in respect of dishonor of a cheque issued by the
accused/respondent for a sum of Rs.1,42,677/- (Rupees One
Lakh Forty Two Thousand Six Hundred and Seventy Seven Only).
The learned Magistrate took cognizance of the offence and
posted the case for recording the statement of the complainant
and his statement was recorded on 16.07.2014 and accused was
summoned. On 15.12.2015 the accused appeared through an
advocate. On two occasion, the presiding officer was on leave.
Subsequently, on many occasion, complainant remained absent.
Hence, having no other alternative, learned Magistrate vide order
dated 29.02.2020 dismissed the complaint for non prosecution.
3. It appears that on 13.12.2018, complainant filed
affidavit in lieu of his examination in chief and Exs.P.1 to Ex.P.7
were marked. The case was posted for his cross-examination. On
10.01.2019, since both accused as well as the complainant were
absent, the case was adjourned to 30.01.2019 and on the said
date, again the accused was absent and subsequently i.e., from
12.03.2019 the complainant remained absent. Hence, the
learned Magistrate dismissed the complaint for non-prosecution.
Though the said order cannot be found fault with, however,
considering the submission of the learned counsel for the
petitioner that the complainant will tender himself for cross-
examination and hereafter he will diligently prosecute his
complaint, this court deems it appropriate to give him one more
opportunity, to prove his case, however, by imposing cost.
Hence the following:
ORDER
The appeal is allowed. The impugned order dated
29.02.2020 passed in C.C.No.19382/2014 on the file of XVIII
Additional Chief Metropolitan Magistrate at Bengaluru is hereby
set side.
(i) The complaint shall be resorted to its
original file and the learned Magistrate is
directed to proceed further in accordance
with law.
(ii) The Complainant shall appear before the
trial Court on or before 17.12.2021.
(iii) He shall pay cost of Rs.5,000/- (Rupees
Five Thousand Only) to the Karnataka
Legal Services Authority and furnish a
receipt for having paid the cost in the
trial Court on the next date of hearing.
(iv) If the trial court records are received,
the same shall be sent back .
Sd/-
JUDGE
rv
