Sri. Jagadish vs Dr. Yeshoda. K. P
2022 Latest Caselaw 5203 Kant

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      IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 22ND DAY OF MARCH, 2022

                         BEFORE

          THE HON'BLE MR. JUSTICE K.NATARAJAN

              CRIMINAL APPEAL No.1432/2018

BETWEEN

SRI. JAGADISH
S/O. PURUSHOTHAMA NAIDU,
AGED ABOUT 37 YEARS,
R/AT NO. 18, 6TH CROSS,
KAVERINAGARA,
BOMMASANDRA INDUSTRIAL AREA,
BEGUR, KODICHIKKANAHALLI MAIN ROAD,
BENGALURU-560 068.                           ... APPELLANT

(BY SRI SUBRAMANYA H V, ADVOCATE)

AND

DR. YESHODA. K. P.
W/O. DR. PRAKASH,
AGE: MAJOR,
PROP: M/S. AKHILLNDANE GAS AGENCY,
HOLALKERE,
CHITRADURGA DISTRICT.                    ... RESPONDENT

(BY SRI M S MANJUNATHA, ADVOCATE)

      THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4)
OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT DATED
16.01.2018 PASSED BY THE XX A.C.M.M., BANGALORE IN
C.C.NO.17436/2017   -   ACQUITTING    THE   RESPONDENT/
ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 138
OF N.I. ACT.

      THIS CRIMINAL APPEAL COMING ON FOR ADMISSION
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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                         JUDGMENT

This appeal is filed by the appellant/complainant

under Section 378 of Cr.P.C for setting aside the order of

dismissal of complaint on the ground of default dated

16.01.2018 in C.C.No.17436/2017 passed by the XX

Additional Chief Metropolitan Magistrate, Bengaluru for the

offence punishable under Section 138 of Negotiable

Instruments Act, 1881 and direct the trail court to restore

the complaint.

2. Heard the arguments of learned counsel for the

appellant and learned counsel for the respondent.

3. The rank of the parties before the trial court is

retained for the sake of brevity and convenience.

4. The case of the complainant is that the accused-

respondent borrowed loan of Rs.25 lakhs and for

discharging loan he has issued a cheque which was

dishonoured and therefore a complaint under Section 200

Cr.P.C read with 138 of Negotiable Instruments Act, 1881,

has been filed before the JMFC, Holalkere District

Chitradurga. Subsequently on the point of jurisdiction the

same was transferred to Bangalore and registered as PCR

No.14059/2015. Subsequently the case was set down for

hearing on interlocutory application for condoning the

delay in filing the complaint as per Section 142 (3) of NI

Act and the same was allowed by the trial court and

subsequently the trial court took cognizance against the

accused for the offences under Section 138 of NI Act

passed on 29.06.2017. The summons was also issued

against the respondent-accused. Respondent-accused

appeared and filed exemption application through advocate

and it was allowed. Subsequently the matter was posted

for recording sworn statement on 16.01.2018, thereafter

finally on the said date the complainant was absent. The

counsel requested for adjournment which was rejected and

finally the complaint was dismissed for default, holding

that the petitioner wrongly registered case against the

accused, even though sworn statement was not recorded.

The accused is before the court challenging the same.

5. Learned counsel for the appellant submits there

was some delay in filing the complaint and it was allowed

by the trial court by condoning delay. Instead of posting

the case for sworn statement, the trial court already took

the cognizance against the accused and thereafter again

posted the matter for sworn statement which is factually

wrong. However the appellant submitted that the

appellant was unwell and he was taking treatment for

jaundice and finally the trial court dismissed the complaint

for default.

6. On perusal of the order sheet produced herein

which reveals though in the trial court, may be the

previous officer of the court while condoning delay, the

matter was not posted for recording the sworn statement.

However prior to that while allowing the application for

condoning the delay notice was issued to the respondent

accused and there was representation from the accused by

an advocate. Subsequently, IA was allowed, delay was

condoned and instead of posting the matter for recording

sworn statement the trial court wrongly held by taking

cognizance and registered the case against the accused,

even though the accused not challenged the same and

remained absent. Subsequently the trial Court realised the

error committed thereunder and posted the matter for

recording sworn statement on the date of dismissal on

16.01.2018. The counsel for the complainant sought for an

adjournment for keeping the complainant present but it

was denied and complaint was dismissed.

7. In my considerate opinion once the trial court

rightly or wrongly taken the cognizance, it cannot be

recalled or as there is bar under Section 362 of Cr.P.C for

recalling any order of cognizance and posting the matter

for sworn statement. Of course the complainant was

absent, if he has not pursued the matter complaint can be

dismissed for non-prosecution and non-appearance of the

complainant as per Section 256 of Cr.P.C. However, there

is no fault of the complainant, the complaint came to be

dismissed by the trial court, therefore there is an error and

mistake committed by the trial court in dismissing the

appeal. Once the cognizance was taken and without filing

any revision by any of the parties, such being the case

order of the trial court is not sustainable under the law.

Therefore it is liable to be set aside.

Accordingly this appeal is allowed.

The order of dismissal of the complaint for default in

C.C.No.17436/2017 dated 16.1.2018 by the XX Additional

Chief Metropolitan Magistrate, Bengaluru is hereby set

aside. The matter is restored to the trial court and to

proceed with the matter by giving an opportunity for

complainant for recording sworn statement and thereafter

proceed in accordance with law. The appellant shall appear

before the Trial Court by filing an advance application

within 15 days from the date of receipt of the copy of this

appeal.

Sd/-

JUDGE akv