Karnataka High Court
Mr. M. Prabhakar Kini vs Mr. D. Ravi Kumar on 9 January, 2023
Bench: P.N.Desai
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CRL.A No. 428 of 2017
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. 428 OF 2017
BETWEEN:
1. MR. M. PRABHAKAR KINI
S/O LATE MR. M. GOPAL KINI,
AGED ABOUT 78 YEARS,
R/AT NO.B 202, MANTRI GARDEN,
JAYANAGAR 1ST BLOCK,
BANGALORE - 560 011.
...APPELLANT
(BY SRI. ASHWIN KUMAR M S., ADVOCATE)
AND:
1. MR. D. RAVI KUMAR
S/O MR. DORAISWAMY,
AGED ABOUT 45 YEARS,
NO.E 1201, MANTRI ELEGANCE,
N.S.PALYA, BANNERGHATTA ROAD,
Digitally signed by
NAGARATHNA M BANGALORE - 560 076.
Location: HIGH
COURT OF
KARNATAKA
ALSO AT
NO. 74/75,
3RD CROSS, I MAIN, N.S.PALYA,
BANNERGHATTA ROAD,
BANGALORE - 560 076.
AND
VILLA NO. 25, 349
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CRL.A No. 428 of 2017
ADARSH PALM MEADOWS,
OLD AIRPORT VARTHUR ROAD,
BANGALORE - 560 066.
...RESPONDENT
(BY SRI. CHANDRASHEKARA K., ADVOCATE)
THIS CRIMINAL APPEAL IS FILED U/S 378(4) OF CR.P.C BY
THE ADVOCATE FOR THE APPELLANT PRAYING THAT THIS HON'BLE
COURT MAY BE PLEASED TO SET ASIDE THE ORDER DATED
24.01.2017 PASSED BY THE XXIII ACMM, BANGALORE IN
C.C.NO.19497/2013 AND DISMISSING THE COMPLAINT FOR NON-
PROSECUTION AND RESTORE THE CASE ON ITS FILE IN THE
COURT BELOW AND THEREAFTER PROCEED IN ACCORDANCE WITH
LAW.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard learned counsel for appellant and learned counsel
for respondent.
2. This appeal is filed challenging the order of
dismissal dated 24.01.2017 wherein the case came to be
dismissed as no steps were taken by paying process fee by the
claimant before the trial Court.
CRL.A No. 428 of 2017
3. Heard Sri. Ashwin Kumar M.S., learned counsel for
appellant and Sri. Chandrashekara K., learned counsel for
respondent.
4. Learned counsel for the appellant stated that
private complaint is filed for offence punishable under Sections
138 and 142 of Negotiable Instruments Act (hereinafter
referred to as 'N.I.Act' for short) and the amount involved in
this case is Rs.30,00,000/- (Rupees Thirty Lakhs Only).
5. Learned counsel also stated that the complainant is
a senior citizen and there is some communication gap between
the appellant and advocate before the trial Court. Though the
court has issued NBW but due to non-communication by the
advocate the complainant came to be dismissed and he prayed
for restoring the complaint and complainant will go on with the
case without fail.
6. Per contra, learned counsel for respondent
contended that the complaint came to be dismissed for non-
CRL.A No. 428 of 2017
prosecution. The same was restored by this Court in
Crl.A.No.51/2015 by order dated 24.01.2015 and liberty was
granted to prosecute the case. The learned counsel for
respondent argued that appeal deserves to be dismissed as
the complaint is not diligent in prosecuting the case before the
trial Court and it amounts to harassment of the accused.
7. Perused the records and also order sheet of the trial
Court.
8. Admittedly, the private complaint is filed under
Section 138 of N.I. Act. The trial Court after perusing the
records and sworn statement has taken cognizance and also
ordered to issue summons to the accused by order dated
31.10.2013. Thereafter it appears that the summons was
served to the accused. Then NBW came to be issued to the
accused and as no steps were taken complaint came to be
dismissed. Again this complaint has been restored before the
trial Court. The process fee was paid and NBW issued.
CRL.A No. 428 of 2017
Thereafter that NBW was not returned by police. Again
complaint dismissed.
9. It is evident that the cheque amount is
Rs.30,00,000/- and complainant aged more than 74 years
when the complaint was filed. Therefore, in the ends of justice
and looking into the age of the complainant and nature of
complaint, in my considered view the appeal deserves to be
allowed, however with some cost on the appellant payable to
the respondent towards this appeal. The accused/respondent
has appeared before this Court through learned counsel.
Accused/respondent shall also appear before the trial Court
without seeking any further notice from the trial Court.
Accordingly, I pass the following:
ORDER
(i) Appeal is allowed.
(ii) The order passed by the XXIII Additional Chief
Metropolitan Magistrate, Bengaluru in
C.C.No.19497/2013, whereby complaint came to
CRL.A No. 428 of 2017
be dismissed is hereby set aside. Complaint is
restored to its file.
(iii) Complainant and the accused i.e., appellant and
respondent are directed to appear before the
XXIII Additional Chief Metropolitan Magistrate on
04.02.2023 without further notice
(iv) The appellant shall pay a sum of Rs.5,000/- to
the respondent as a cost of this appeal.
Sd/-
JUDGE
BVK
