Karnataka High Court
M N Shankare Gowda vs T S Prashanth on 20 December, 2021
Bench: Mohammad Nawaz
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF DECEMBER, 2021
BEFORE:
THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ
CRIMINAL APPEAL NO.810 OF 2020
BETWEEN
M.N.SHANKARE GOWDA
S/O NINGE GOWDA
AGED ABOUT 35 YEARS
R/AT NO.17, TENT ROAD
10TH CROSS, MUDALAPALYA
SANJEEVINI NAGAR
BENGALURU - 560 072. ... APPELLANT
[BY SRI. LETHIF.B, ADVOCATE]
AND
T.S.PRASHANTH
S/O LATE SURYANARAYAN
AGED ABOUT 44 YEARS
R/AT NO.23, V MAIN
3RD CROSS, PAPANNA BLOCK
GANGANAGAR
BENGALURU - 560 032.
HAVING BUSINESS AT
M/S VARALAKSHMI SILK
SAREES AND DRESSES
NO.1 & 2, GROUND FLOOR
NO.1083, AROGYAPPA LAYOUT
ST. THOMAS TOWN POST
KAMMANAHALLI MAIN ROAD
BENGALURU - 560 084. ...RESPONDENT
***
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4)
CRPC PRAYING TO SET ASIDE THE ORDER DATED 06.06.2019
PASSED BY THE XXIII A.C.M.M., AT BENGALURU IN
C.C.NO.14256/2016, ACQUITTING THE RESPONDENT/ACCUSED
FOR THE OFFENCE PUNISHABLE UNDER SECTION 138 OF
NEGOTIABLE INSTRUMENTS ACT.
2
THIS CRIMINAL APPEAL COMING ON FOR JUDGMENT
THROUGH PHYSICAL HEARING, THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
JUDGMENT
The complainant in C.C.No.14256/2016 on the file of
the Court of XXIII Additional Chief Metropolitan Magistrate at
Bengaluru, has preferred this appeal praying to set aside the
order dated 06.06.2019 by which the complaint filed against the
accused/respondent alleging an offence punishable under
Section 138 of Negotiable Instruments Act (herein after referred
to as 'NI Act') has been dismissed for default.
2. Heard the learned counsel for the appellant and
perused the material on record.
3. The complaint is filed in respect of dishonour of
two cheques issued by the accused/respondent for a sum of
`3,50,000/- (Rupees Three lakhs fifty thousand only) and
`3,00,000/- (Rupees Three lakhs only) respectively. Learned
Magistrate issued summons to the accused vide order dated
17.06.2016. The order-sheet would disclose that the said
summons issued to the accused was not served. Therefore
non-bailable warrant came to be issued. The complainant was
also directed to take non-bailable warrant by hand and assist
the police in execution of non-bailable warrant and in
identification of accused. The said order is passed on
22.04.2017. It appears that on number of occasions
thereafter, the complainant remained absent and the non-
bailable warrant could not be executed. Hence non-bailable
warrant was re-issued to the accused. Even after that non-
bailable warrant could not be executed. On 06.06.2019, the
learned Magistrate proceeded to dismiss the complaint for
default, observing that inspite of re-issuance of non-bailable
warrant, the complainant has not co-operated to execute the
summons by furnishing the correct address nor he has come
forward to take effective steps.
4. It is the submission of the learned counsel for the
appellant that the respondent is a habitual offender and there
are number of complaints filed against him under Section 138
of NI Act. He submits that the said accused is in judicial
custody in another case, as UTP. No.79/2021 at Bagalkot sub-
jail. He submits that the cheque amount in the present case is
`6,50,000/- (Rupees Three Six Lakhs fifty thousand only) and
therefore if the complaint is not restored to the file of trial
Court, great injustice will be done to the complainant. He
submits that henceforth, the complainant will be diligent in
prosecuting the complaint and he will take all necessary steps
to effect service on the accused.
5. Complaint has been dismissed for default. The
accused is not served before the trial Court. It is submitted
that the accused is in judicial custody in connection with
another case. However, it cannot be lost sight of the fact that
the complainant has remained absent before the trial Court
on number of occasions. Considering the submissions of the
learned counsel for the appellant, I deem it appropriate to
give the complainant one more opportunity, in the interest of
justice, however, by imposing cost.
6. Hence, the following :
ORDER
The appeal is allowed.
The order dated 06.06.2019 passed by XXIII Additional
Chief Metropolitan Magistrate at Bengaluru in
C.C.No.14256/2016 is hereby set aside.
The complaint shall be restored to its file and the
learned Magistrate shall proceed in accordance with law,
taking necessary steps for service of summons on the
accused/respondent, subject to following compliance:
The appellant/complainant shall deposit a sum of
`10,000/- (Rupees Ten thousand only) with the Karnataka
Legal Services Authority and shall produce the receipt before
the trial Court within a period of two weeks from today.
Sd/-
JUDGE
GVP
