Sri. K M Aswathanarayana vs Sri. R Srinivas
2023 Latest Caselaw 539 Kant

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                                                      CRL.A No. 1235 of 2018




                       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                             DATED THIS THE 9TH DAY OF JANUARY, 2023

                                             BEFORE
                                THE HON'BLE MR JUSTICE P.N.DESAI
                                CRIMINAL APPEAL NO. 1235 OF 2018
                      BETWEEN:

                       SRI. K. M.ASWATHANARAYANA
                       AGED ABOUT 44 YEARS, S/O. K.H. MUNIYAPPA
                       R/A. KARNALA VILLAGE,
                       THUBUGERE HOBLI & POST
                       DODDABALLAPURA TALUK
                       BENGALURU RURAL DISTRICT - 561 203

                                                                  ...APPELLANT

                      (BY SRI. H.V.SUBRAMANYA., ADVOCATE)

                      AND:

                         SRI. R.SRINIVAS,
                         S/O.RAMACHANDRAPPA,
                         PROPRIETOR, M/S.ARUN FLORICULTURE,
                         #1875, WARD NO.2,
                         DEVARAJANAGARA,
Digitally signed by      DODDABALLAPURA TALUK,
NAGARATHNA M
Location: HIGH           BENGALURU RURAL DISTRICT-561203
COURT OF
KARNATAKA
                                                                ...RESPONDENT

                      (BY SRI.DHARANESHA., ADVOCATE (ABSENT))

                           THIS CRL.A. FILED U/S.378(4) CR.P.C BY THE
                      ADVOCATE FOR THE APPELLANT/S PRAYING THAT THIS
                      HON'BLE COURT MAY BE PLEASED TO SET ASIDE THE ORDER
                      DATED 28.01.2017 PASSED BY THE XII ADDL.C.M.M.,
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                                       CRL.A No. 1235 of 2018




BENGALURU IN C.C.NO.21550/2014, THEREBY RESTORE THE
CASE FOR ORIGINAL STAGE AND DIRECT THE TRIAL COURT
TO PROCEED FURTHER IN ACCORDANCE WITH LAW.

     THIS APPEAL, COMING ON FOR FURTHER ARGUMENTS,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:

                         JUDGMENT

Though the matter is listed at the stage of admission,

the same is taken for final disposal by consent.

2. This appeal is filed challenging the order dated

28.01.2017 passed by the XII Additional Chief Metropolitan

Magistrate, Bengaluru (for short hereinafter referred to as

'learned ACMM') in C.C.No.21550/2014, whereby the learned

ACMM dismissed the complaint for non-prosecution.

3. Heard Sri. H.V.Subramanya, learned counsel for

the petitioner and perused the records of the Trial Court. No

representation for the respondent.

4. Learned counsel for the appellant argued that the

complainant has filed a complaint under Section 200 of Code

of Criminal Procedure (for short hereinafter referred to as

'Cr.P.C') against the accused for the offences punishable

CRL.A No. 1235 of 2018

under Section 138 of Negotiable Instruments Act (for short

hereinafter referred to as 'N.I Act'). The cheque amount

involved is a sum of Rs.18,00,000/-. The learned ACMM vide

order dated 06.08.2014 issued summons to the accused and

the complainant has taken steps to accused by furnishing

process fee. The order sheet reveals that summons was

served and the accused did not appear before the Court,

accordingly, learned ACMM ordered to issue NBW. Thereafter

the police report was awaited, again the case was adjourned.

Thereafter, again NBW came to be reissued to the accused on

several dates, even though the respondent did not appear.

Thereafter, the order sheet reveals that the complainant and

his counsel were remained absent only on three occasions,

hence, the learned ACMM passed the impugned order.

Therefore, learned counsel prayed to set aside the impugned

order and to allow the appeal.

5. The order dated 28.01.2017 of the Trial Court

reads as under:

CRL.A No. 1235 of 2018

"Complainant and counsel absent at 03:00 p.m. No representation. Hence, this order

Case called out at 3.00 p.m., the complainant absent and counsel for the complainant absent. On perused the order sheet, it is reveals that, the complainant had filed the present complaint, then after registered the case and issued notice to the accused and same was un-executed. In spite of giving sufficient opportunity, neither the complainant nor his counsel, they have not taken any steps against the accused and even today also they are remained absent. Hence, the complainant is not interest to prosecute the complaint. Thereby, the said complaint under Section 256 of Cr.P.C. is dismissed for non-prosecution, accordingly."

6. It is evident that the order passed by the learned

ACMM is contrary to the proceedings mentioned in the order

sheet. Because the order sheet dated 30.12.2014 shows that

the summons was served on accused and accused remained

absent. Therefore, the Trial Court ordered to issue NBW. On

several occasions, the complainant has taken steps to serve

notice and NBW to the accused. Particularly on 13.04.2016,

CRL.A No. 1235 of 2018

04.08.2016 and on 27.09.2016 NBW came to be re-issued to

the accused and the complainant has paid PF to that effect.

But the learned ACMM without noticing the same has held that

summons were not served to the accused, the complainant

and his counsel have not taken any steps against the accused

and they also remained absent and dismissed the complaint

for non-prosecution.

7. This reasoning of the learned ACMM is contrary to

the settled principles regarding dismissal of the complaint

particularly under Section 256 of Cr.P.C. Since there is

nothing on record to show that NBW was returned un-

executed, infact, the complainant has paid PF when the Trial

Court ordered to reissue NBW to the accused. There is no

record to show that why the NBW is not returned and what

steps the Court has taken regarding securing the report from

the concerned police for non-execution of NBW to the

accused.

8. This Court in Crl.A.No.200033/202s dated

30.09.2022 in the case of Sri.Nagaraj and Sri. Ishwar

CRL.A No. 1235 of 2018

considered the aspects regarding what should be the

approach of the Trial Court while dismissing the complaint

under Section 256 of Cr.P.C., and particularly when the

offences involved under N.I. Act and where the amount

involved is nearly a sum of Rs.18,00,000/- and at paragraph

Nos.10, 11 and 12 it is held as under:

"10. In order to appreciate dismissal of complaint, it is necessary to refer to the provisions of Section 256 of Cr.P.C, which reads as under:

256. Non-appearance or death of complainant.-(1) If the summons has been issued on complaint, and on the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall, notwithstanding anything hereinbefore contained, acquit the accused, unless for some reason he thinks it proper to adjourn the hearing of the case to some other day:

CRL.A No. 1235 of 2018

Provided that where the complainant is represented by a pleader or by the officer conducting the prosecution or where the Magistrate is of opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case.

(2) The provisions of sub-section (1) shall, so far as may be, apply also to cases where the non-appearance of the complainant is due to his death."

11. On perusing the said Section, it is evident that the Court has to exercise its discretion judiciously. The proviso clearly indicates that when the Court is of the opinion that the personal attendance of the complainant is not necessary, the Magistrate may be dispense with attendance of complainant and proceed with the case.

12. Here the complainant's case is under Section 138 of N.I.Act. The amount of cheque involved is stated to be Rs.4,50,000/-. The sworn statement of complainant is given and he has produced documents in support of his case.

CRL.A No. 1235 of 2018

Therefore, keeping in the mind, the exercise of power under appeal and the peculiar facts and circumstances of this case, and in view of Section 256 of Cr.P.C., in my considered view the appeal deserves to be allowed."

9. In view of the principles stated in the above

decision, keeping in mind, the exercise of power under

appeal, the peculiar facts and circumstance of this case, and

in view of Section 256 Cr.P.C., and making justice oriented

approach, in my considered view, the appeal deserves to be

allowed.

Accordingly, I pass the following :

ORDER

i) The appeal is allowed.

ii) The order dated 28.01.2017 passed in C.C.No.21550/2014 by XII Additional Chief Metropolitan Magistrate, Bengaluru is hereby set aside. The C.C.No.21550/2014 is restored to the original file of XII Additional Chief Metropolitan Magistrate, Bengaluru.

CRL.A No. 1235 of 2018

iii) The Trial Court shall proceed further from the stage when the complaint is dismissed in accordance with the procedure prescribed for trial of such cases.

iv) The complainant shall also take steps by paying process fee and by furnishing correct address of the accused.

v) The complainant shall present before the Court without awaiting for the notice on 13.02.2023.

vi) Send back the records to the Trial Court.

Sd/-

JUDGE

HJ