Mr. Navaneetha Kumar A vs Sri. Durga Properties
2022 Latest Caselaw 9265 Kant

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 IN THE HIGH COURT OF KARNATAKA, BENGALURU

       DATED THIS THE 21ST DAY OF JUNE 2022

                        BEFORE

     THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ

         CRIMINAL APPEAL NO.2064/ 2018

BETWEEN:

MR. NAVANEETHA KUMAR.A
S/O ARUMUGHAM.U
AGED 37 YEARS
R/AT: 472/1, 100 FEET ROAD
DODDA BANASWADI
BENGALURU-560 043                           ... APPELLANT

(BY SRI SURESH D DESHPANDE, ADVOCATE)

AND:

1.     SRI DURGA PROPERTIES
       NO.5 & 6, III FLOOR, BB ROAD
       NH-7 BYPASS, ABOVE CAFÉ COFFEE DAY
       YELAHANKA, BENGALURU-560 064
       REPRESENTED BY ITS PROPRIETOR

2.     MR. N.SRINIVASA GOWDA
       S/O LATE T.NARAYANASWAMY
       R/AT: BEARYS LAKESIDE HABITAT
       NO.18, FLAT NO.ALPHA-081
       SHANTHIVANA, KODIGEHALLI
       BENGALURU-560 092               ... RESPONDENTS

(BY SRI SUDHANVA D.S, ADVOCATE )

     THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378
(4) OF CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT
DATED 12.06.2018 PASSED BY THE LVIII ACMM, BENGALURU
IN      C.C.NO.53353/2017        ACQUITTING      THE
RESPONDENT/ACCUSED FOR THE OFFENCE PUNISHABLE
UNDER SECTION 138 OF N.I. ACT.
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      THIS CRIMINAL APPEAL COMING ON FOR ADMISSION
THIS DAY, THE COURT DELIVERED THE FOLLOWING:-

                             JUDGMENT

This appeal is preferred by the complainant in

C.C.No.53353/2017, praying to set aside the order dated

12.06.2018 passed by the LVIII Additional Chief

Metropolitan Magistrate, Bengaluru, wherein the learned

Magistrate has dismissed his complaint filed against the

respondent/accused for an offence punishable under

Section 138 of Negotiable Instrument Act for non

prosecution.

2. Heard and perused the material on record.

3. The complaint was filed in respect of

dishonour of cheque for a sum of Rs.79,50,000/-. The

order sheet maintained by the trial Court discloses that

the complaint was presented on 22.10.2016. On

22.04.2017 complainant's affidavit was treated as sworn

statement. Thereafter Exs.P.1 to P.14 were marked.

Summons was issued to the accused. Since he did not

appear, NBW came to be issued. However, on 15.03.2018

accused appeared and he was released on bail. It appears

that thereafter the case was listed to 21.04.2018 for

cross-examination of PW.1. Though PW.1 was present on

that day, accused remained absent. Therefore, the case

was adjourned to 12.06.2018 imposing cost of Rs.600/-

on the accused. On 12.06.2018 since the complainant and

his counsel were absent, the learned Magistrate dismissed

the complaint for non-prosecution.

4. Perusal of the order sheet discloses that on

12.06.2018 the complainant and his counsel were absent

and on the very same day the complaint was dismissed

for non-prosecution. It is not in dispute that when the

case was posted for cross-examination of the complainant

on 21.04.2018, the complainant was present but the

accused was absent. Thereafter case was adjourned by

imposing cost on the accused. From the order sheet it

does not appear that there was an intentional lapse on

the part of the complainant to remain absent on

12.06.2018. The learned Magistrate has observed that

sufficient reasonable opportunity has been granted, it

seems complainant is not interested in prosecuting the

case. The said observation is not proper and dismissal of

the complaint for non prosecution has resulted in

miscarriage of justice.

5. Learned counsel appearing for the appellant

submits that the amount involved is very huge. He

submits that if an opportunity is given, the complainant

will diligently prosecute his complaint.

6. In the facts and circumstances of the case

and also for the reasons noted supra and keeping in view

the submission made by the learned Counsel for the

appellant, it is just and proper to give an opportunity to

the complainant to prosecute his case. Hence the

following :

ORDER

The appeal is allowed.

(i) The order dated 12.06.2018 passed in

C.C.No.53353/2017 on the file of LVIII ACMM, Bengaluru

is hereby set aside.

(ii) The complaint shall be restored to its original

file and the learned Magistrate is directed to proceed with

the case in accordance with law.

(iii) The complainant shall appear before the trial

Court without further notice on 06.07.2022 and on further

dates.

(iv) The complainant shall deposit a sum of

Rs.5,000/-(Rupees five thousand only) towards cost, with

the Karnataka State Legal Services Authority and shall

furnish a copy of the receipt before the trial Court on the

next date of hearing.

Sd/-

JUDGE

PKN