Sunderlal Sipani vs M/S Tristar Homes Pvt Ltd
2023 Latest Caselaw 622 Kant

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                                                         CRL.A No. 1749 of 2018




                      IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                           DATED THIS THE 10TH DAY OF JANUARY, 2023

                                             BEFORE
                               THE HON'BLE MR JUSTICE P.N.DESAI
                             CRIMINAL APPEAL NO. 1749 OF 2018 (A)
                      BETWEEN:

                      SUNDERLAL SIPANI
                      S/O LATE SOHANLAL SIPANI
                      R/AT NO.862/E,7TH CROSS,
                      3RD BLOCK, KORAMANGALA,
                      BANGALORE-560 034.

                                                                   ...APPELLANT
                      (BY SRI. M. SHARASS CHANDRA, ADVOCATE)
                      AND:
Digitally signed by
RENUKAMBA K G
Location: HIGH
                      1.   M/S TRISTAR HOMES PVT LTD
COURT OF                   TRISTAR SUNRISE, G-003,
KARNATAKA
                           7TH MAIN, MYTHRI LAYOUT,
                           WHITEFIELD ROAD,
                           BANGALORE-560 006
                           REPRESENTED BY ITS DIRECTOR
                           AND AUTHORISED PERSON
                           MR K B RAJEEV MENON

                      2.   MR K B RAJEEV MENON
                           MAJOR IN AGE,
                           DIRECTOR AND AUTHORISED PERSON,
                           TRISTAR SUNRISE, G-003,7TH MAIN,
                           MYTHRI LAYOUT,WHITEFIELD ROAD,
                           BANGALORE-560 006

                                                                 ...RESPONDENTS

                      (BY SRI. DEEPAK, ADVOCATE FOR R1 AND R2)
                                  -2-
                                          CRL.A No. 1749 of 2018




     THIS CRIMINAL APPEAL IS FILED U/S.378(4) CR.P.C
PRAYING TO SET ASIDE THE ORDER DATED 02.12.2016
PASSED BY THE I ADDL.C.J.M., BENGALURU IN C.C.NO.
02.12.2016 ACQUITTING THE RESPONDENT/ACCUSED FOR
THE OFFENCE P/U/S 138 OF N.I. ACT AND RESTORE THE
COMPLAINT, ETC.

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


                          JUDGMENT

This appeal is filed by the complainant against the

order dated 02.12.2016 passed by the I Additional Chief

Judicial Magistrate at Bengaluru, in C.C. No.3121/2016

(PCR No.100/2015) dismissing the complaint filed by the

appellant/complainant.

2. The brief facts of the case are that, the

appellant/complainant has filed a private complaint under

Section 200 of Cr.P.C. against Accused Nos. 1 & 2 before

the Court of Additional Chief Judicial Magistrate at

Bengaluru, praying to secure the accused No.2 and punish

him for the offences under Section 138 of Negotiable

Instruments Act, 1881 (In short, 'N.I. Act') and also under

Section 420 of Indian Penal Code (In short, 'IPC').

CRL.A No. 1749 of 2018

3. The gist of complaint is, Accused No.1 is a

Company Registered under the Companies Act and

Accused No.2 is the Director of the said Company, who is

authorized to manage all its financial matters; At the

request of Accused No.2 on behalf of the said Company,

the complainant has advanced loan of Rs.10,00,000/-

(Rupees Ten Lakhs only) on 04.11.2013 by cash to the

accused for his business purpose; Towards repayment of

the said amount, Accused No.2 had issued a Cheque

bearing No.028727 dated 03.01.2015 for a sum of

Rs.10.00 Lakhs drawn on Axis Bank Limited, White Field

Branch, Bengaluru in favour of the complainant, with an

assurance that the same will be honoured by his banker

on its presentation; But, when the said cheque was

presented to HDFC Bank Ltd., Richmond Road, Bengaluru,

on 08.01.2015, the same was dishonoured on 12.01.2015

with an endorsement 'Insufficient Funds'. Therefore, in

that regard, the complainant issued a statutory legal

notice to Accused Nos. 1 and 2 demanding repayment of

Rs.10.00 Lakhs. The said notice was duly served on

CRL.A No. 1749 of 2018

23.01.2015 and in spite of that, the accused have failed

to repay the said loan amount. Hence, the complainant

has filed a private complaint before the CJM Rural Court,

Bengaluru, which was registered in PCR No.100/2015 and

later culminated in CC No.3121/2015.

4. It is seen from the records that, the

complainant was represented by his GPA Holder and

initially he was present before the Court and filed affidavit

in the form of sworn statement and the original cheque

and other documents. Thereafter, the court took

cognizance of offence and issued summons to accused.

The accused did not present before the Court and hence,

NBW came to be issued against accused. The complainant

did not take steps. Therefore, ultimately, on 02.12.2016

the Court has passed an order dismissing the complaint,

which reads as under:-

"Complainant called at 11.10 a.m. Complainant called again at 4.40 p.m. S.P. Adv. Called on.

CRL.A No. 1749 of 2018

Complainant fails to take steps. Complainant is not interested in proper proceedings. Hence, complaint is dismissed under Section 256 of Cr.P.C."

5. Against the said order, the complainant is before

this Court by filing this appeal praying to set aside the said

order and to restore the complaint on to the file of the CJM

Court

6. Heard.

7. Learned counsel for the appellant/complainant

has argued that, the complainant is an aged person and

hence, he appointed the GPA holder by name one Sri.

C.S. Rajachandan and the said GPA holder has not

informed the complainant anything regarding the said

order and also now he is not taking initiation in the

matter. Therefore, the complainant intends to prosecute

the case on his own or by appointing another GPA Holder.

Hence, he requested the Court to allow the appeal and

restore the complaint, and the appellant will take

necessary steps without fail.

CRL.A No. 1749 of 2018

8. I have perused the records. The dishonoured

Cheque amount is Rs.10.00 Lakhs. On perusal of the

records, it is noticed that, after recording sworn

statement, the learned Magistrate has taken cognizance

and issued summons to the accused on 12.03.2015 and

thereafter, on 31.12.2015 the case was transferred from

CJM Court to ACJM Court and thereafter, NBW came to be

issued against the Accused. Then no steps were taken by

the complainant, and therefore, the complaint came to be

dismissed. Admittedly, the age of the complainant -Sri.

Sunderlal Sipani is shown as 70 years in the cause-title.

Initially when the complaint was filed, the complainant

was represented by GPA Holder. Therefore, looking to the

nature of complaint and also the huge cheque amount

involved in this case is of Rs.10.00 Lakhs, in my

considered view, the appeal deserves to be allowed.

However, it is required to be observed that the

appellant/complainant shall be diligent and he shall take

necessary steps without fail and if he adopts any dilatory

tactics, then it is open for the trial Court to proceed further

CRL.A No. 1749 of 2018

in accordance with law for progress of case. Accordingly,

I proceed to pass the following:

ORDER

(i) The appeal is allowed.

(ii) The order dated 02.12.2016 passed by I Additional Chief Judicial Magistrate at Bengaluru Rural, is set aside.

(iii) The complaint in CC No.3121/2016 (PCR No.100/2015) is restored on to the file of the said Court.

(iv) However, it is made clear that the appellant/complainant shall take steps without fail.

(v) The complainant shall appear before the Trial Court on 13.02.2023 at 10.30 a.m., without expecting any prior notice either to him or to his counsel.

(vi)    No Costs.



                                              Sd/-
                                             JUDGE


KGR*