Karnataka High Court
Sri. H Ramu vs Sri. Shivanna on 19 December, 2023
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
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NC: 2023:KHC:46213
CRL.A No. 231 of 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR
CRIMINAL APPEAL NO. 231 OF 2020
BETWEEN:
SRI. H. RAMU,
S/O. LATE. HUCHEGOWDA,
AGED 62 YEARS,
R/AT BHOODAGUPPE VILLAGE,
KASABA HOBLI, MADDUR TALUK,
MANDYA DISTRICT-571 428.
...APPELLANT
(BY SRI. JAGADISH BALIGA .N, ADVOCATE)
AND:
SRI. SHIVANNA,
AGED 57 YEARS,
S/O CHANNAVEERAIAH,
R/AT NO. 2ND CROSS, H K V NAGARA,
NEAR T B CIRCLE, SETU BUIDLING,
Digitally MADDUR TOWN,
signed by MANDYA DISTRICT-571 428.
SOWMYA D ...RESPONDENT
Location: (RESPONDENT IS SERVED)
High Court THIS CRL.A. IS FILED U/S.378(4) CR.P.C PRAYING TO
of
SET ASIDE THE ORDER DATED 07.09.2019 IN
Karnataka
C.C.NO.451/2018 ON THE FILE OF THE I ADDITIONAL CIVIL
JUDGE AND JMFC MADDUR AND THEREBY CONVICT THE
RESPONDENT FOR THE OFFENCE P/U/S.138 OF
N.I. ACT.
THIS APPEAL COMING ON FOR ORDERS THIS DAY THE
COURT DELIVERED THE FOLLOWING:
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NC: 2023:KHC:46213
CRL.A No. 231 of 2020
JUDGMENT
Heard the learned counsel for appellant.
2. The appellant has filed the complaint under
Section 200 of Cr.P.C. against respondent/accused alleging
that he has committed offence punishable under Section
138 of the N.I. Act. According to the complainant, the
accused has availed financial assistance to the tune of
Rs.2,00,000/- from complainant/appellant and in
discharge of the said debt, he has issued a cheque bearing
No.346453 on 16.11.2017 for Rs.2,00,000/- which was
when presented, returned for "insufficient funds".
Thereafter, a statutory notice was issued. However, as
there was no response, he claimed to have filed a
complaint before the learned Magistrate.
3. The learned Magistrate has recorded the sworn
statement of complainant and thereafter, issued process
against the accused. The accused has appeared through
his counsel and he was enlarged on bail. Subsequently,
the learned Magistrate recorded the plea of the accused
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and further directed him to deposit 20% of the cheque
amount by granting 60 days of time from 29.04.2019.
However, the order sheet discloses that no such amount
was deposited and initially, though the matter was kept
pending for deposit, subsequently, the matter was posted
for examination-in-chief and deposit. On 07.09.2019, the
learned Magistrate considering the fact that the
complainant and counsel regularly absent, dismissed the
complaint for non-prosecution.
4. The dismissal of the complaint falls under
Section 256 of Cr.P.C. and it is appealable order as it
amounts to acquittal. The complainant on 12.09.2019
moved an application for recalling the order of dismissal,
but the learned Magistrate by order dated 24.09.2019,
rejected the said application on the ground that accused
has got a right of appeal. However, instead of filing the
appeal, complainant/appellant filed revision before the V
Additional Sessions Judge, Mandya in Cr.R.P.No.260/2019.
The learned Magistrate dismissed the said revision vide
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order dated 28.11.2019, holding that the dismissal order
amounts to acquittal though there is no specific word is
used in the order. As such, the complainant is before this
Court by way of this appeal.
5. The learned counsel for appellant fairly concede
that there is a mistake on his part in filing the recalling
application and filing the revision, and he could have
directly approached this Court by way of appeal. He would
also submit that to set right the mistakes which have been
done inadvertently, he has approached this Court.
6. On perusal of the order sheet of the trial Court,
it is evident that the matter was all along pending for
payment/deposit of 20% of the cheque amount and for
examination-in-chief. The learned Magistrate should not
have proceeded with the trial without deposit of 20% of
cheque amount. But at the same time, the conduct of the
complainant cannot be appreciated as he never appeared
before the Court and the learned counsel appearing for the
complainant did not insist for depositing 20% of the
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amount as ordered by the trial Court. He should have
brought it to the notice of the Court that amount was not
deposited and accused has no right to contest the matter.
The learned Magistrate should have taken coercive steps
as against the accused/respondent herein, but instead of
doing so he straight away dismissed the complaint and the
order of the learned Magistrate is arbitrary and erroneous
and as such, it suffers from perversity. But at the same
time, the complainant/appellant is also guilty of latches.
Considering these facts and circumstances, the appeal
needs to be allowed subject to imposition of certain costs
on account of latches on the part of the complainant.
Hence, I proceed to pass the following:
ORDER
(i) The appeal is allowed.
(ii) The impugned order dated 07.09.2019 passed
by the I Additional Civil Judge and JMFC,
Maddur in C.C.No.451/2018, is set aside.
(iii) The matter is remitted back to the learned
Magistrate with a direction to register the
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matter in original C.C.No.451/2018 and then
proceed in accordance with law as directed in
the body of this judgment.
(iv) Further, the complainant/appellant herein is
directed to appear before the learned Magistrate
on 22.01.2024 at 10.30 a.m., without waiting
for any notice. On the date of appearance, the
complainant/appellant herein shall deposit cost
of Rs.2,500/- (Rupees Two Thousand Five
Hundred only) before the Taluk Legal Services
Committee, Maddur. On the same date, the
complainant/appellant shall take appropriate
steps for issuing process to the accused for his
appearance and thereafter, the learned
Magistrate is directed to proceed in accordance
with law.
Sd/-
JUDGE
DS
