Sri. Bhaskar Prasad Shali vs Sri. R. Arul
2023 Latest Caselaw 4023 Kant

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                                                 CRL.A No. 1107 of 2023
                                                     NC: 2023:KHC:23055




               IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                      DATED THIS THE 5TH DAY OF JULY, 2023

                                      BEFORE
                       THE HON'BLE MS JUSTICE J.M.KHAZI
                       CRIMINAL APPEAL NO.1107 OF 2023
               BETWEEN:

                   SRI. BHASKAR PRASAD SHALI
                   S/O SRI. VENKATESHWARLU SHALI,
                   AGED ABOUT 49 YEARS,
                   R/AT NO.39, 1ST C CROSS ROAD,
                   NARAYANAPPA LAYOUT,
                   BBMP WARD NO.191,
                   ELECTRONICS CITY POST,
                   BENGALURU - 560 100.
                                                            ...APPELLANT
               (BY SRI. PRADEEP G C, ADVOCATE)

               AND:

                   SRI. R. ARUL
                   S/O. LATE UTTHARIMUTHU RAJENDRAN,
                   AGED ABOUT 44 YEARS,
Digitally signed   R/AT NO.431, SIDDARTHA NAGAR,
by MADHURI S       HOSUR MAIN ROAD, MADIWALA,
Location: High     BENGALURU - 560 068.
Court of
Karnataka                                                 ...RESPONDENT

                    THIS CRIMINAL APPEAL IS FILED UNDER SECTION
               378(4) OF CR.P.C PRAYING TO SET ASIDE THE ORDER DATED
               15.04.2023 PASSED BY THE XVI ACMM, BENGALURU IN
               C.C.NO.24149/2022, DISMISSING THE COMPLIANT CASE FOR
               NON PROSECUTION, IN THE INTEREST OF JUSTICE.

                   THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE
               COURT DELIVERED THE FOLLOWING:
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                                            CRL.A No. 1107 of 2023
                                                       NC: 2023:KHC:23055




                             JUDGMENT

This appeal is by the complainant, challenging the

dismissal of the complaint filed by him against

respondent/accused for the offence punishable under

Section 138 of N.I.Act, contending that the cheque issued

by the respondent/accused towards repayment of legally

recoverable debt came to be dishonored. After issuing

legal notice and on failure of respondent/accused to pay

the amount due, he filed complaint under Section 200

Cr.P.C. The trial Court took cognizance and issued

summons to the accused. In fact the summons which was

issued and re-issued is returned unserved. On 15.04.2023,

the Trial Court dismissed the complaint for non

prosecution by observing that for six months, the

complainant has not taken steps which is not correct. The

complainant has taken steps for issue of summons through

Court, by hand and also through RPAD. Without providing

reasonable opportunity, the trial Court has erred in

dismissing the complaint and prays to allow the appeal

and remand the matter to disposal in accordance with law.

CRL.A No. 1107 of 2023 NC: 2023:KHC:23055

2. Since the complaint came to be dismissed

before appearance of the accused, notice to

respondent/accused is dispensed with.

3. From the perusal of the order sheet, it is

evident that on 26.07.2022, the Trial Court has taken

cognizance and ordered for issue of summons to the

accused returnable by 27.09.2022. On that day, the Trial

Court has ordered for re-issue of summons returnable by

07.12.2022. The order sheet state that it is returned

unserved. Therefore, the Trial Court has ordered issue of

summons through RPAD returnable by 14.02.2023. The

order sheet dated 14.02.2023 state that the summons

sent to accused through RPAD is returned as refused and

the Trial Court has observed that under Section 27 of the

General Clauses Act, 1897, it is deemed service and

ordered for issue of NBW returnable by 15.04.2023. On

that day, by observing that complainant has not furnished

PF, the Trial Court has proceeded to dismiss the complaint.

The order sheet indicate that the complainant has

CRL.A No. 1107 of 2023 NC: 2023:KHC:23055

diligently prosecuted the complaint. Only on 15.04.2023,

noting the absence of complainant and his counsel, the

Trial Court has dismissed the complaint. Therefore, the

observation of the Trial Court that the complainant was

not diligent and since six months steps have not been

taken, is not correct. In the circumstances, the impugned

order is liable to be set aside and complainant be given

reasonable opportunity to prosecute the complaint and

accordingly, I proceed to pass the following:

ORDER

(i) Appeal is allowed.

(ii) The impugned order dated 15.04.2023 passed

in C.C.No.24149/2022 on the file of XVI

Additional Chief Metropolitan Magistrate,

Bengaluru, is set aside. The case is restored to

the file.

(ii) The complainant is directed to appear before

the trial Court on 31.07.2023 without waiting

for further notice from the trial Court.

CRL.A No. 1107 of 2023 NC: 2023:KHC:23055

(iii) The trial Court is directed to proceed from the

stage at which the complaint was dismissed for

non prosecution and decide the case in

accordance with law, after providing reasonable

opportunity to both parties.

Sd/-

JUDGE

MDS