Karnataka High Court
Sri K N Shivashankar vs Sri Venugopal on 3 November, 2022
Bench: J.M.Khazi
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF NOVEMBER, 2022
BEFORE
THE HON'BLE MS.JUSTICE J.M.KHAZI
CRIMINAL APPEAL NO.731 OF 2018
BETWEEN:
SRI K N SHIVASHANKAR
S/O NARAYANA RAO
AGED ABOUT 61 YEARS,
GAYATHRI STRUCTURAL AND ROOFING PVT LTD
#16, OLD NO.999 H.M.T. MAIN ROAD,
DIWANARAPALYA, YESHWANTHAPURA
BANGALORE - 560 022
... COMPLAINANT/APPELLANT
(BY SRI. RAJENDRA K.R., ADVOCATE)
AND:
SRI VENUGOPAL
AGED ABOUT 66 YEARS,
R/A ADITI #005, 2ND CROSS
MUNESHWARA TEMPLE ROAD EXTENSION
KEMPAPURA HEBBALA
BANGALORE - 560 024
AND ALSO AT:
MR VENUGOPAL
PARINDE APARTMENT,
#173, 6TH CROSS,
GANDHINAGAR
BANGALORE - 560 009
...ACCUSED/RESPONDENT
(BY SRI. CHANDRAIAH & SMT. GAYATHRI, ADVOCATES)
THIS APPEAL IS FILED UNDER SECTION 378(4) OF THE
CODE OF CRIMINAL PROCEDURE PRAYING TO a) SET ASIDE
2
THE JUDGMENT AND ORDER OF ACQUITTAL DATED
27.01.2018 PASSED BY THE IV ADDITIONAL AND XXX
A.C.M.M COURT (S.C.C.H.6) AT BANGALORE CITY IN
C.C.NO.23399/2017 AND CONVICT THE RESPONDENT /
ACCUSED FOR THE OFFENCES PUNISHABLE UNDER SECTION
138 OF NEGOTIABLE INSTRUMENT ACT AND TO AWARD THE
COMPENSATION TO THE APPELLANT / COMPLAINANT b) PASS
SUCH OTHER ORDER / ORDERS AS THIS HON'BLE COURT
DEEMS FIT IN THE FACTS AND CIRCUMSTANCES OF THE
CASE IN THE INTEREST OF JUSTICE.
THIS APPEAL COMING ON FOR ORDERS THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This is complainant's appeal against dismissal of his
complaint filed under Section 138 of N.I.Act.
2. For the sake of convenience the parties are
referred to by their rank before the trial Court.
3. Appellant has contended that initially it was
pending before XIII ACMM and vide order dated
20.11.2017, it was transferred to the Court of XXX
ACMM, Bengaluru. On 10.01.2018, it was posted for
cross-examination of PW-1. Noting the absence of PW-1,
the trial Court took the cross-examination as -Nil- and
posted the case to 16.01.2018 for statement under
Section 313 Cr.P.C and after recording the said
statement posted the matter to 17.01.2018 for
arguments and in the absence of complainant and his
counsel, taking their arguments as heard posted the
matter to 27.01.2018 for judgment and on that
pronounced the judgment dismissing the complaint.
4. It is further case of the appellant that from
27.11.2017, the case was adjourned to 28.12.2017. On
that day, complainant came to know that it is transferred
to some other Court on 20.11.2017 itself. However, he
could not get the next date. By the time he could
ascertain the next date and the Court to which it is
transferred, the complaint was already dismissed and
prays to remand the case to enable him to prosecute the
complaint.
5. Heard arguments and perused the record.
6. From the order sheet it is evident that initially
the case was pending before XIII ACMM, Bengaluru and
from 21.11.2017, it was posted to 28.12.2017. On
28.12.2017, it is noted to have been transferred to
SCCH-6 vide administrative order dated 20.11.2017. On
28.12.2017 itself, it was also called before the
transferred Court and after noting the absence of PW-1
posted to 10.01.2018. On 10.01.2018, after noting the
absence of PW-1, his cross-examination was taken as Nil.
Thereafter, recording statement under Section 313
Cr.P.C, the transferred Court has proceeded to dismiss
the appeal on merit.
7. The fact that on account of transfer of the
case, the complainant and his counsel were not in a
position to know the next date and thereby were
prevented from appearing before the transferred Court is
not seriously disputed by the counsel for accused. Having
regard to the alleged transaction between the
complainant and accused and consequent dishounour of
the cheque and also taking into consideration the amount
involved, I am of the considered opinion that complainant
be given one more opportunity to prosecute the
complaint and as such the matter requires remand, fixing
the date of appearance of parties before the trial Court.
8. However, learned counsel for accused submits
that accused is not in contact with him and therefore, it
may not be possible for him to intimate the date and trial
Court may be directed to issue notice to the accused.
9. In the result, appeal deserves to be allowed
and I proceed to pass the following:
ORDER
(i) Appeal is allowed.
(ii) The impugned order dated 27.01.2018 in
C.C.No.23399/2016 on the file of XXX ACMM
Court, Bengaluru is set aside.
(iii) The matter is remanded to the trial Court,
with a direction to the complainant to appear
before the trial Court 05.12.2022 without
waiting for further notice.
(iv) However, the trial Court is directed to issue
notice to accused and proceed in accordance
with law.
Sd/-
JUDGE
RR
