Karnataka High Court
Sri Sankalchand S/O Chunilalji ... vs Smt. Veena N. W/O (Not Known To ... on 12 August, 2022
Bench: J.M.Khazi
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CRL.A No. 100350 of 2022
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 12TH DAY OF AUGUST, 2022
BEFORE
THE HON'BLE MR JUSTICE J.M.KHAZI
CRIMINAL APPEAL NO. 100350 OF 2022 (A-)
BETWEEN:
1. SRI SANKALCHAND S/O CHUNILALJI KAWAD,
AGE. 71 YEARS,
OCCP. PROPRIETOR LOKSEVA DRESSES
AND LOKASEVA FABS,
R/O. JAIN MARKET BALLARI,
THOUGH P. A. HOLDER AKSHAY KUMAR H. M.
S/O. LATE YERRISWAMY,
AGE. 24 YEARS, OCCP. PRIVATE SERVICE,
R/O. BALLARI-583101.
...APPELLANT
(BY SRI. NEELENDRA.D.GUNDE, ADVOCATE)
AND:
1. SMT. VEENA N. W/O (NOT KNOWN TO PETITIONER)
AGE. MAJOR,
OCCP. PROP OF MS GOLDRUSH CLOTHINGS,
NO. 41, KARIHOBANAHALLI VILLAGE,
Digitally signed by
CHANDRASHEKAR
LAXMAN
SRI KRISHNA ESTATE, T G PALYA MAIN ROAD,
KATTIMANI
2ND STAGE, PEENYA BANGALORE-560058.
CHANDRASHEKAR
LAXMAN Location: HIGH
KATTIMANI COURT OF
KARNATAKA,
DHARWAD
Date: 2022.08.12
14:36:58 +0530
...RESPONDENT
(NOTICE DISPENSED WITH)
THIS CRIMINAL APPEAL IS FILED U/S 378(4) OF CR.P.C.,
SEEKING TO CALL FOR THE RECORDS AND ALLOW THIS
CRIMINAL APPEAL BY SETTING ASIDE THE JUDGMENT AND
ORDER OF ACQUITTAL DATED 21.06.2022 PASSED IN C.C.
NO.285/2020 PASSED BY THE III-ADDITIONAL CIVIL JUDGE AND
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CRL.A No. 100350 of 2022
JMFC, BALLARI, REGISTERED FOR THE OFFENCES PUNISHABLE
U/S 138 OF N.I. ACT, AND CONVICT THE RESPONDENT.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING.
JUDGMENT
For the sake of convenience, parties are referred to by
their rank before the Trial Court.
2. Appellant, who is complainant in CC No.847/2019
on the file of III Additional Civil Judge and JMFC Court, Ballari,
filed a private complaint under Section 200 of the Code of
Criminal Procedure, (for short "Cr.P.C") alleging that he is
running cloth business under the name and style "Lok Seva
Dresses" and "Lok Seva Fabs". Accused is running garment
business under the name and style "Goldrush Clothings". In
respect of credit purchase made by her, accused issued two
cheques for a sum of Rs.5,60,014/- and Rs.5,56,000/- and on
presentation, the same came to be returned with endorsement
"payment stopped by drawer". By order dated 20.06.2019, the
trial Court took cognizance and issued summons. However, in
spite of taking steps several times, the accused managed to
dodge service of summons. On 21.06.2022, the trial Court
CRL.A No. 100350 of 2022
dismissed the complaint for non prosecution. The trial Court
ought to have provided reasonable opportunity to the
complainant to secure the presence of accused, especially when
she is intentionally evading service of summons and prays to
allow the appeal.
3. Heard the arguments and perused the record.
4. Initially, the case was allotted I-Additional JMFC
Court, Ballari and numbered as CC No.847/2019. Vide
administrative order dated 04.07.2020 passed by the CJM,
Ballari, it was made over to the Court of III Additional Civil
Judge and JMFC., Ballari, and renumbered as CC No. 285/2020.
5. From the order sheet of both Courts it is evident
that the trial Court had ordered issue of summons to accused
on several dates. However, the order sheet does not state
whether in fact summons was issued and if so what happened
to the summons so issued, i.e., whether it is executed or
returned un-executed and reasons. The Bench clerk who has
maintained the order sheet has not noted whether steps have
been taken as ordered by the Court, if so whether in fact
summons was issued and whether it is served, if not, the
CRL.A No. 100350 of 2022
reason for non service. If the order sheet is properly
maintained, the Court will be in a position to know at whose
fault the summons could not be served.
6. Even though the accused has not put in her
appearance, vide order dated 30.07.2021, 27.09.2021 and
23.02.2022 the trial Court has referred the matter to the Lok-
Adalat and returned the file as not settled. Ultimately, the
complaint came to be dismissed on 21.06.2022 under Section
256 of Cr.P.C on the ground of absence of complainant. Having
regard to the fact that the accused has evaded the service of
summons and taking into consideration the fact that
complainant and accused were having business transaction and
also the amount involved in the transaction, I am of the
considered opinion that complainant requires reasonable
opportunity to prosecute the complaint, secure the presence of
the accused and proceed with the matter and accordingly, I
proceed to pass the following:
ORDER
Appeal is allowed.
CRL.A No. 100350 of 2022
The impugned order dated 21.06.2022 passed
by the III Additional Civil Judge and JMFC., Ballari is
set aside.
The complaint is restored to the original file,
with a direction to the complainant to prosecute the
matter diligently to secure the presence of the
accused and proceed with the matter without seeking
unnecessary adjournments.
The complainant is directed to appear before
the trial Court on 06.09.2022 and take steps for
issuance of summons to the accused.
Sd/-
JUDGE
PJ
