Karnataka High Court
Sri Banuprakash C vs Sri Srikanth C on 8 December, 2023
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
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NC: 2023:KHC:44679
CRL.A No. 304 of 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR
CRIMINAL APPEAL NO. 304 OF 2020
BETWEEN:
SRI. BANUPRAKASH .C,
S/O. B. M. CHIKKABORE GOWDA,
AGED ABOUT 31 YEARS,
RESIDING AT NO. 23, 7TH CROSS,
PRAMOD LAYOUT, NAYANDANAHALLI,
BENGALURU-560 039.
...APPELLANT
(BY SRI. K.S. RAGHAVENDRA, ADVOCATE FOR
SRI. SHIVANANDA .S, ADVOCATE)
AND:
SRI. SRIKANTH .C,
S/O. CHANNARAMAIAH,
AGED ABOUT 34 YEARS,
RESIDING AT NO. 109,
1ST FLOOR, 59 FEET MAIN ROAD,
Digitally 22ND MAIN, GIRINAGAR,
signed by BENGALURU-560 085.
SOWMYA D
AND ALSO AT:
Location:
High Court
of R/AT NO. 332, 8TH MAIN,
Karnataka 4TH CROSS, B.D.A. LAYOUT,
GIRINAGAR,
BENGALURU-560 085.
...RESPONDENT
(RESPONDENT IS SERVED)
THIS CRL.A IS FILED U/S.378(4) CR.P.C PRAYING TO SET
ASIDE THE ORDER DATED 19.09.2018 PASSED BY THE LVIII
ADDL.C.M.M., MAYO HALL, BENGALURU IN C.C.NO.58935/2017
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NC: 2023:KHC:44679
CRL.A No. 304 of 2020
DISMISSING THE COMPLAINT FOR NON PROSECUTION -
ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE
P/U/S 138 OF N.I. ACT.
THIS APPEAL COMING ON FOR ORDERS THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the appellant / complainant
under Section 378 (4) of Code of Criminal Procedure
(hereinafter referred to as 'Cr.P.C' for short) challenging
the order of dismissal of the complaint filed before the
learned LVIII Additional Chief Metropolitan Magistrate,
Mayo Hall Unit Bangalore in C.C.No.58935/2017 dated
19.09.2018.
2. For the sake of convenience, the parties
herein are referred with original ranks occupied by them
before the trial Court.
3. The brief factual matrix leading to the case
are that the complainant alleged that accused had
borrowed a sum of Rs.2,50,000/- from him as a hand
loan assuring of repayment within six months. However,
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he did not repay the same and on demand, he issued a
cheque dated 27.03.2017 drawn on HDFC Bank
Kalkara Main Road Branch, Bengaluru. When the said
cheque was presented for encashment, it was returned
with an endorsement that 'payment stopped by the
drawer'. The complainant thereafter got issued a legal
notice and as there was no response, he filed a
complaint before the learned Magistrate under Section
200 of Cr.P.C alleging that accused has committed
offence under Section 138 of N.I.Act.
4. The complaint was registered in PCR
No.56314/2017. After recording the sworn statement,
the learned Magistrate has taken cognizance by issuing
process to the accused by registering the case in
C.C.No.58935/2017. The accused subsequently
appeared in pursuance of summons and was enlarged
on bail.
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5. Thereafter, as per the decision of the Hon'ble
Apex Court in 'INDIAN BANK ASSOCIATION AND
OTHERS VS. UNION OF INDIA AND OTHERS', (2014)
5 SCC 590, the learned Magistrate ordered for treating
the sworn statement as examination-in-chief. Later on,
the matter was posted for cross-examination and for one
or the other reasons, it was adjourned. On 19.09.2018,
matter was again called out, and since, there was no
representation on behalf of the complainant and his
counsel, ultimately, the complaint came to be
dismissed.
6. Against this dismissal of the complaint,
initially the complainant has approached the learned
Sessions Judge in Crl.R.P.No.25158/2018. Later on, the
matter was adjourned for hearing on maintainability
and subsequently, the learned counsel for the appellant
has withdrawn the revision petition and has filed this
appeal on the ground that the dismissal of the
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complaint under Section 256 of Cr.P.C amounts to
acquittal and it is only appealable. Hence, he filed this
appeal.
7. Heard the learned counsel for the appellant.
The respondent though served is unrepresented.
Perused the documents perused by the appellant.
8. Admittedly, the sworn statement of the
complainant was recorded and same was treated as
examination-in-chief. However, the matter was
adjourned on 17.04.2018, 13.06.2018, 02.07.2018,
27.07.2018, 17.08.2018 and 19.09.2018 for cross-
examination. For one or the other reasons, the matter
was adjourned and on 19.09.2018, the complaint came
to be dismissed. The learned counsel would contend
that he may be given an opportunity as the amount
involved is Rs.2,50,000/-.
9. On perusing the records, no illegality or
perversity is found in the order of the learned Magistrate
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and the learned Magistrate is justified in dismissing the
complaint for non appearance of the complainant. It is
for the complainant to explain for his non-appearance
on 19.09.2018 in the morning session as well as in the
afternoon session. Even the counsel did not represent.
Hence, the learned Magistrate without any alternative
dismissed the complaint.
10. However, the learned counsel for the
appellant would submit that he may be given an
opportunity to substantiate his case. By giving an
opportunity to the appellant, no injustice would not be
caused to the respondent, as the respondent would get
an opportunity to cross examine the complainant /
appellant to substantiate his defence. However, the
complainant/ appellant is guilty of latches and he is
required to be saddled with costs. Considering these
aspects, the appeal needs to be allowed by remitting
back the matter to the learned Magistrate by setting
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aside the impugned order dated 19.09.2018 subject to
payment of costs. Accordingly, I proceed to pass the
following:
ORDER
(i) The appeal is allowed.
(ii) The impugned order dated 19.09.2018
passed by LVIII Additional Chief
Metropolitan Magistrate, Mayo Hall
Unit Bangalore in C.C.No.58935/2017
is set aside.
(iii) The matter is restored to its original
file subject to appellant / complainant
depositing Rs.2,500/- before the
learned Magistrate on the date of
appearance towards cost incurred by
the State.
(iv) The appellant shall appear before the
learned Magistrate on 19.01.2024 at
10.30 a.m. without waiting for court
notice.
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(v) On the same day, he shall deposit the
costs of Rs.2,500/- before the court
and he shall take steps against
respondent for issuance of notice.
(vi) The learned Magistrate is directed to
proceed from the stage of cross-
examination and then dispose of the
matter in accordance with law.
(vii) The Registry is directed to forward a
copy of this order to the trial court
immediately for compliance.
Sd/-
JUDGE
SS
