Ashirvad Pipes Private Limited vs Mr R V Babu
2022 Latest Caselaw 7686 Kant

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 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 30TH DAY OF MAY, 2022

                         BEFORE

      THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ

             CRIMINAL APPEAL NO.12 OF 2022

BETWEEN

ASHIRVAD PIPES PRIVATE LIMITED,
NO.45, ATTIBELE INDUSTRIAL AREA,
HOSUR ROAD, BANGALORE,
KARNATAKA-562 107,
REP. BY ITS AUTHORISED REPRESENTATIVE
MR. K. BALAMURALI KRISHNA.                    ... APPELLANT

[BY SMT. S. SUSHEELA, SENIOR ADVOCATE
 FOR SRI ANIL KUMAR.M.V., ADVOCATE]

AND

MR. R.V.BABU,
S/O (NOT KNOWN TO APPELLANT),
ADULT,
PROPRIETOR OF PRAVEEN TUBES CORPORATION,
ADDRESS: NO.48, POST OFFICE STREET,
CHENNAI TAMIL NADU-600 001.              ... RESPONDENT

[RESPONDENT SERVED, UNREPRESENTED]

      THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4) of
CR.P.C., PRAYING TO SET ASIDE THE IMPUGNED ORDER DATED
27.11.2021 IN C.C.NO.426/2021 PASSED BY THE XIV ADDL.S.C.J
AND ACMM (SCCH-10), BENGALURU DISMISSING THE COMPLAINT
FOR NON-PROSECUTION AND THEREBY ACQUITTING THE
ACCUSED FOR THE OFFENCE P/U/S 138 OF N.I. ACT AS PER
ANNEXURE-C AND TO RESTORE THE AFOREMENTIONED CASE AND
PERMIT THE APPELLANT/COMPLAINANT TO PROSECUTE THE
MATTER IN ACCORDANCE WITH LAW.

     THIS CRIMINAL APPEAL COMING ON FOR FINAL DISPOSAL,
THROUGH VIDEO CONFERENCE/PHYSICAL HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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                         JUDGMENT

In this appeal, the order dated 27.11.2021 passed

by the Court of XIV Additional SCJ and ACMM at

Bangalore in C.C.No.426/2021, dismissing the complaint

filed by the appellant for an offence under Section 138 of

N.I Act, is under challenge.

2. Heard the learned senior counsel appearing

for appellant and perused the material on record.

3. Respondent is served, but there is no

representation.

4. Impugned order would reveal that the

complainant/PW.1 failed to appear for cross-examination

on several dates and therefore the learned Magistrate

holding that he is not interested to proceed with the

matter, dismissed the complaint for non-prosecution and

acquitted the accused.

5. The learned Senior counsel appearing for the

appellant would submit that during the relevant dates

the Standard Operating Procedure (SOP) which was

issued consequent to the outbreak of Covid-19 pandemic

was in force and therefore there was restriction for the

parties including the advocates to appear before the trial

Court except in emergency cases. It is therefore

contended that the trial Court dismissing the complaint

for non-prosecution observing that the complainant has

remained absent on all those dates mentioned in the

impugned order has resulted in miscarriage of justice.

She submits that the cheque amount is huge and

therefore if the impugned order is not set aside then

great prejudice and hardship will be caused to the

appellant.

6. The material on record would disclose that a

complaint was filed by the appellant herein against the

respondent alleging an offence punishable under Section

138 of N.I. Act. The complainant was examined as PW.1

by filing his affidavit in lieu of sworn statement and he

got marked the documents as Exs.P1 to P6. The trial

after registering the case, issued summons to the

accused and in response the accused appeared before

the trial Court and he was enlarged on bail.

7. The Learned Senior Counsel appearing for the

appellant has filed a memo along with the copies of SOP

dated 21.05.2021, 25.06.2021, 28.08.2021 and

14.01.2022.

8. Vide SOP dated 21.05.2021, restriction was

imposed for the entry of litigants, advocates etc., and

there was a direction to hear only urgent matters

through video conferencing and also not to pass any

adverse orders on the ground of absence of advocates

and accused etc. It is no doubt true that the said SOP

was modified and the restrictions were lifted in the

subsequent SOP. However, to certain extent restrictions

were in operation. In the said circumstances it cannot

be said that the absence of the complainant was

intentional. It is relevant to see that on those dates

even the accused did not appear before the trial Court

and he was absent. However, this Court finds that some

lapse is there on the part of the complainant in

remaining absent which has caused inconvenience to the

Court.

9. Considering the fact that the complaint was

dismissed for non-prosecution, to meet the ends of

justice, the complainant can be given an opportunity to

prosecute the complaint, however, by imposing cost. For

the above reasons, the following

ORDER

Appeal is allowed.

(i) The order dated 27.11.2021 passed by the Court of XIV Additional SCJ and ACMM in C.C.NO.426/2021, dismissing the complaint for non-prosecution is hereby set aside.

(ii) The complaint shall be restored to its original file and the trial Court is directed to proceed with the case in accordance with law.

(iii) The appellant/complainant shall pay a cost of Rs.10,000/- (Rupees Ten Thousand only), which shall be deposited with the

State Legal Service Authority within a period of one week from the date of receipt of a copy of this order and the receipt shall be produced before the trial Court.

(iv) Appellant/complainant shall appear before the trial Court without further notice, on 14.06.2022.

Sd/-

JUDGE

HB/-