Karnataka High Court
M/S Mokkan Marketing vs L.R. Associates on 27 October, 2022
Bench: J.M.Khazi
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF OCTOBER, 2022
BEFORE
THE HON'BLE MS.JUSTICE J.M.KHAZI
CRIMINAL APPEAL NO.1310 OF 2015
BETWEEN:
M/s. MOKKAN MARKETING
A PARTNERSHIP FIRM,
NO.1/5, 2ND FLOOR,
CUNNINGHAM ROAD,
BANGALORE - 560 052.
REPRESENTED BY ITS
AUTHORISED SIGNATORY,
MR.YOUNUS SHARIFF.
...COMPLAINANT/APPELLANT
(BY SRI. PRADEEP SOMAIAH, ADVOCATE)
AND
L.R. ASSOCIATES
A PROPRIETORSHIP CONCERN,
HAVING ITS OFFICE AT:
NO.15, GROUND FLOOR,
"B" STREET, BALAPPA GARDEN,
TASKER TOWN,
BANGALORE - 560 051.
BY ITS SOLE PROPRIETOR,
MR.SHAIK ABDUL RAUF
......ACCUSED/RESPONDENT
THIS CRL.A. FILED U/S.389(4) OF CR.P.C BY THE
ADVOCATE FOR THE APPELLANT PRAYING THAT THIS
HON'BLE COURT MAY BE PLEASED TO i) SET ASIDE THE
ORDER DATED 16.09.2015, PASSED IN C.C.NO.34432 OF
2011, ON THE FILE OF HON'BLE COURT OF XXI ACMM & XXIII
ASCJ, BANGALORE AND RESTORE THE COMPLAINT IN
C.C.NO.34432 OF 2011; ii) ANY OTHER ORDERS THAT THIS
HON'BLE COURT MAY DEEM FIT IN THE CASE IN THE
2
INTEREST OF JUSTICE OR OTHERWISE THE APPELLANT WILL
BE PUT TO IRREPARABLE INJURY AND LOSS.
THIS CRIMINAL APPEAL COMING ON FOR ORDERS
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Being aggrieved by dismissal for default of
complaint filed by him for the offence punishable under
Section 138 of N.I.Act, complainant has come up with
this appeal.
2. For the sake of convenience the parties are
referred to by their rank before the trial Court.
3. It is the case of the complainant that it is a
partnership firm. At the request of accused, a
Proprietorship concern, his services were engaged in mid
2009 to promote complainant's business on remuneration
solely based on incentive in the form of commission.
Accordingly, accused started promoting the business of
complainant. At his request, complainant financially
supported the accused and by January 2011, accused
was due in a sum of Rs.8,00,942/-. Towards discharge of
the said liability, accused issued 14 post dated cheques
for a total sum of Rs.8,00,942/-. Out of them
complainant presented three cheques for a sum of
Rs.2,37,800/- for encashment. The same was
dishounoured on the ground of insufficiency of funds
resulting in filing of the complaint before XV ACMM,
Bengaluru. After taking cognizance, suit summons was
ordered to be issued to the accused.
4. Vide Notification dated 30.05.2014, this case
was transferred to the Court of XLII ACMM, Bengaluru.
Once again vide order of the CJM, the said complaint was
transferred to XXI ACMM. Complainant was ordered to
take steps and on 16.09.2015, the trial Court dismissed
the complaint for non-prosecution. Against the said order
the present appeal is filed, contending that both
complainant and his counsel were not aware of the date
and previous two dates and as such they could not be
present before the Court to take steps.
5. Perusal of the order sheet indicates that the
complaint came to be dismissed by the trial Court before
the appearance of accused. Learned counsel for
appellant/complainant submitted that in the light of
transfer of the complaint from one Court to the other,
complainant as well as his counsel were not aware of the
hearing date and since the complaint came to be
dismissed even before the appearance of the accused,
there is no need to hear the accused/respondent and
relying upon the decision of the co-ordinate Bench of this
Court in Crl.A.No.1020/2015, the learned counsel for
appellant/complainant would submit that appeal may be
allowed and the matter may be remanded to the trial
Court to enable complainant to prosecute the complaint.
6. As evident from the order sheet, initially the
complaint was made over to the Court of XV ACMM,
Bengaluru. Vide order dated 30.05.2014, it was made out
to the Court of XLII ACMM. Once again vide order dated
29.07.2015, it was transferred to XXI ACMM Court. From
the order sheet, it is not clear whether notice was duly
served on the complainant. In the absence of the same,
the contention of the complainant that he and his counsel
were not aware of the hearing date is required to be
accepted.
7. Since the complaint came to be dismissed
even before the appearance of accused, no prejudice
would be caused if the matter is remanded without
hearing the respondent/accused and accordingly, notice
to respondent is dispensed with. Since the complaint was
dismissed for default, I am of the considered opinion that
complainant ought to be given an opportunity to
prosecute the complaint.
8. Vide order dated 18.02.2016,
appellant/complainant was directed to deposit litigation
cost of Rs.5,000/- before this Court and accordingly, he
has deposited the same. Learned counsel for
appellant/complainant submits that he may be permitted
to withdraw the same, as accused failed to appear before
this Court and he did not incur any litigation expenses.
9. In the result, I proceed to pass the following:
ORDER
(i) Appeal is allowed. The order dated 16.09.2015
is set aside. Complaint is restored to the file.
(ii) Appellant is directed to appear before the trial
Court on 21.11.2022 without waiting for
notice from it.
(iii) Appellant is permitted to withdraw Rs.5,000/-
deposited by him before this Court vide order
dated 18.02.2016.
Sd/-
JUDGE
RR/LL
