Karnataka High Court
Smt.Vasantha Bhaskaran vs Sri B.V.Gopinath on 4 November, 2022
Bench: J.M.Khazi
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF NOVEMBER, 2022
BEFORE
THE HON'BLE MS.JUSTICE J.M.KHAZI
CRIMINAL APPEAL NO.328 OF 2022
BETWEEN:
SMT.VASANTHA BHASKARAN
W/O SRI T V BHASKARAN,
AGED ABOUT 74 YEARS,
NO.1882, SREENARASIMHA NILAYA,
7TH CROSS, 4TH MAIN,
HAL 3RD STAGE,
TIPPASANDRA,
BENGALURU - 560 075.
... COMPLAINANT/APPELLANT
(BY SRI. C.VIJAYA KUMAR, ADVOCATE)
AND:
SRI B.V.GOPINATH
S/O SRI VISHWANTH,
MAJOR,
NO.107, AKSHAYA,
GROUND FLOOR,
5TH CROSS, CAMBRIDGE LAYOUT,
ULSOOR,
BENGALURU - 560 008
...ACCUSED/RESPONDENT
(BY SRI. SHANKAR M NAIK, ADVOCATE)
THIS CRL.A. FILED UNDER SECTION 378(4) OF THE
CODE OF CRIMINAL PROCEDURE PRAYING TO CALL FOR
RECORDS IN C.C.NO.52270/2015 ON THE FILE OF 14TH ADDL.
CHIEF METROPOLITAN MAGISTRATE, AT BENGALURU, SET
ASIDE THE ORDER DATED 14.08.2019 PASSED BY THE 57TH
ADDL. CHIEF METROPOLITAN MAGISTRATE AT BENGALURU
AND PERMIT THE APPELLANT TO PROSECUTE THE CASE ON
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MERITS AND PASS SUCH OTHER ORDER OR ORDERS AS THIS
HON'BLE COURT MAY DEEM FIT TO GRANT IN THE FACTS
AND CIRCUMSTANCES OF THE CASE TO MEET THE ENDS OF
JUSTICE.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Though the matter is posted for admission, with the
consent of learned counsel for the parties, the same is
taken up for final disposal.
2. This is complainant's appeal against dismissal of
her complaint filed under Section 138 of N.I.Act.
3. For the sake of convenience the parties are
referred to by their rank before the trial Court.
4. It is the case of the complainant that she lent a
sum of Rs.25,00,000/- to the accused for establishing his
business of providing professional musical instruments to
the musical directors on hire. Towards repayment of the
same, he issued 8 cheques payable between November to
December 2014. However, when presented for realization,
they were returned dishonored. After issuing notice and on
his failure to respond to the notice, the complainant filed
complaint in C.C.No.52270/2015, which came to be
dismissed on 14.08.2019 for non-prosecution. Complainant
has pleaded that she is a cancer patient under treatment
since 28.03.2016 and it is in third 'C' stage of metastasis.
During April 2016, she underwent surgery. For this reason,
she could not present on 14.08.2019 on which date the
complaint was dismissed.
5. In support of her contention, appellant has
produced medical certificate issued by KIDWAI Institute of
Oncology specifying the schedule for treatment including
surgery. Appellant is a senior citizen aged about 74 years.
Having regard to the fact that she is suffering from cancer,
the reasons for her non-appearance on 14.08.2019 is not
intentional. Taking into consideration the fact that appellant
is a senior citizen, suffering from cancer and also the
cheque amount involved, this Court is of the considered
opinion that the matter requires remand to the trial Court
to enable the complainant to prove her case on merit by
fixing the date of appearance of parties before the trial
Court.
6. 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 14.09.2019 in
C.C.No.52270/2015 on the file of LVII ACMM
(now re-designated as XXXIII ACMM) Court,
Bengaluru is set aside.
(iii) The matter is remanded to the trial Court, for
disposal in accordance with law, with a direction
to both complainant and accused to appear
before the trial Court on 29.11.2022 without
waiting for further notice.
Sd/-
JUDGE
RR
