Mr.K.R.Padmanabha vs Mr.Shailesh K
2023 Latest Caselaw 1402 Kant

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                                                        CRL.A No. 1747 of 2019




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU
                          DATED THIS THE 17TH DAY OF FEBRUARY, 2023
                                             BEFORE
                             THE HON'BLE MR JUSTICE VENKATESH NAIK T
                                CRIMINAL APPEAL NO. 1747 OF 2019
                      BETWEEN:

                         MR.K.R. PADMANABHA,
                         AGED ABOUT 42 YEARS,
                         S/O SRI K.B.RAMUSA,
                         NO.16/1, AMERICAN COLONY,
                         KUMARA PARTK EAST,
                         BANGALORE 560 001.
                                                                     ...APPELLANT
                      [BY SRI. PRABHAKAR L. SHETTY, ADVOCATE (VC)]
                      AND:

                         MR.SHAILESH K,
                         NO.42, 2ND CROSS, A-1,
                         WESTERN MANOR RESIDENCY,
                         AATHMANANDA COLONY,
                         SULTHAN PALYA,
                         R T NAGAR POST,
                         BANGALORE - 560 032.
Digitally signed by                                             ...RESPONDENT
GURURAJ D
Location: High        (BY SRI. CHANDAN, ADVOCATE)
Court of Karnataka
                           THIS CRL.A FILED U/S.378(4) CR.P.C BY THE ADVOCATE
                      FOR THE APPELLANT PRAYING TO SET ASIDE THE ORDER
                      DATED 04.03.2016 PASSED BY THE XVI ADDL.C.M.M.,
                      BENGALURU IN C.C.NO.28449/2014 - ACQUITTING THE
                      RESPONDENT/ACCUSED FOR THE OFFENCE P/U/S 138 OF N.I.
                      ACT.

                          THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
                      RESERVED ON 10.02.2023, THIS DAY, THE COURT
                      PRONOUNCED THE FOLLOWING:
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                                      CRL.A No. 1747 of 2019




                         JUDGMENT

1. The appellant has filed this appeal under Section

378(4) of the Cr.P.C. praying to set aside the order dated

4.3.2016 passed by the XVI Additional Chief Metropolitan

Magistrate at Bengaluru, dismissing the complaint in

C.C.No.28449/2014, for non-prosecution and also prays to

restore the complaint.

2. Brief facts of the case is as under :

The appellant has filed a private complaint under

Section 200 Cr.P.C. in PCR No.13722/14 on the file of the

XVI Additional Chief Metropolitan Magistrate at Bengaluru,

against the respondent. The ACMM took cognisance of the

offence against the respondent and registered a criminal

case in C.C.No.28449/14 for the offence punishable under

Section 138 of the N.I. Act on the ground that, the cheque

issued by the respondent in favour of the appellant in

connection with a hand loan of Rs.5,00,000/- received by

the respondent, came to be dishonoured. The ACMM

issued summons to the respondent and later the appellant

was examined on oath and the matter was posted for

CRL.A No. 1747 of 2019

cross examination. But, on 4.3.2016, the complaint was

dismissed for non-prosecution as the appellant and his

counsel remained absent before the trial Court. Therefore,

the appellant had filed Criminal Revision Petition

No.304/16 before the LXII Addl. City Civil and Sessions

Judge, Bengaluru, challenging the order dated 4.3.2016

passed by the trial Court. However, the learned LXII Addl.

City Civil and Sessions Judge, Bengaluru dismissed the

Criminal Revision Petition filed by the appellant. Hence,

aggrieved by the same, the appellant has filed the present

appeal.

3. Heard the learned counsel for the appellant and

the learned counsel for the respondent.

4. Learned counsel for the respondent fairly

submitted that the appeal may be allowed by imposing

cost on the appellant and the court may impose timeline

for expeditious disposal of the matter.

CRL.A No. 1747 of 2019

5. Perused the material available on record.

According to the appellant, when the case was posted for

cross examination of the appellant, neither the appellant

nor his counsel appeared before the trial Court. Therefore,

the trial court dismissed the complaint for non-

prosecution.

6. I am satisfied that the absence of the

complainant/appellant before the Court was bonafide and

not an intentional one. If the appeal is allowed and the

complaint is restored, the respondent would not suffer any

hardship and if the appeal is not allowed and the

complaint is not restored, the appellant would suffer great

hardship. Therefore, I am satisfied that the absence of the

counsel and the complainant was not intentional and a

bonafide one. If complaint is restored to its original side,

no hardship or prejudice would cause to the respondent

provided, if cost is imposed on the complainant with a

direction to proceed with the matter expeditiously then, no

hardship or prejudice would cause to both the parties.

CRL.A No. 1747 of 2019

7. Hence, the following order is passed :

ORDER

i) The appeal is allowed and the cost of Rs.5,000/- is

imposed on the appellant payable to the respondent;

ii) The trial Court is directed to proceed with the

matter expeditiously and dispose of the matter within a

period of six months from the date of receipt of a copy of

this order;

iii) The parties are directed to appear before the Trial

Court on 6.3.2023.

Sd/-

JUDGE

rs