Sri Mohan N vs Sri. Kantharaj N
2023 Latest Caselaw 4418 Kant

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                                                  CRL.A No. 1377 of 2018
                                                         NC: 2023:KHC:24257




                   IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                          DATED THIS THE 13TH DAY OF JULY, 2023

                                          BEFORE
                            THE HON'BLE MS JUSTICE J.M.KHAZI
                            CRIMINAL APPEAL NO.1377 OF 2018
                   BETWEEN:

                      SRI. MOHAN N
                      S/O NANJAPPA,
                      AGED ABOUT 41 YEARS
                      R/AT NO.11, 3RD CROSS, J C NAGAR
                      BEHIND K E S SCHOOL,
                      MAHALAKSHMIPURAM,
                      BENGALURU - 560 086
                                                                ...APPELLANT
                   (BY SRI. JAGADEESWAR J, ADVOCATE)

                   AND:

                      SRI. KANTHARAJ N
                      S/O NAGARAJAPPA,
                      AGED ABOUT 33 YEARS
                      R/AT Y.V.S.NILAYA, 1ST FLOOR,
Digitally signed      Y.V NARAYANASWAMAPPA LAYOUT
by MADHURI S
Location: High
                      NEAR ROYAL ENFIELD SERVICE STATION,
Court of              1ST MAIN, KEMPEGOWDA WARD NO.1,
Karnataka             YELAHANKA OLD TOWN,
                      BENGALURU - 560 064
                                                           ...RESPONDENT
                   (BY SRI. PRAVEEN KUMAR HIREMATH, ADVOCATE)

                        THIS CRIMINAL APPEAL IS FILED UNDER SECTION
                   378(4) OF CR.P.C PRAYING TO a) SET ASIDE THE JUDGMENT
                   OF ACQUITTAL DATED 05.02.2018 PASSED BY THE XIII ADDL.
                   CHIEF METROPOLITAN MAGISTRATE, BENGALURU CITY,
                   BENGALURU     PASSED    IN  C.C.NO.13031/2017   DATED
                   05.02.2018 AND CONSEQUENTLY ALLOW THIS APPEAL BY
                   CONVICTING THE RESPONDENT FOR OFFENCE UNDER
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                                             CRL.A No. 1377 of 2018
                                                      NC: 2023:KHC:24257




SECTION 138 OF NEGOTIABLE INSTRUMENTS ACT TO MEETS
THE ENDS OF JUSTICE; AND b) PASS SUCH OTHER ORDER OR
ORDERS AS THIS HON'BLE COURT DEEMS FIT TO GRANT IN
THE CIRCUMSTANCES OF THE CASE IN THE INTEREST OF
JUSTICE.

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

                               JUDGMENT

Though this appeal is listed for admission, with the

consent of both learned counsel for parties the matter is

taken up for final disposal.

2. This appeal is by the complainant, challenging the

dismissal of the complaint filed by him against

respondent/accused for the offences punishable under

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

the respondent/accused for a sum of Rs.6,00,000/- 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. After appearance of

accused and he pleading not guilty, complainant has

examined himself as PW-1 and got marked the documents.

CRL.A No. 1377 of 2018 NC: 2023:KHC:24257

After granting two adjournments for cross-examination and

on the ground that complainant has not tendered himself for

cross-examination, the trial Court has discarded the evidence

of complainant and proceeded to dispose of the matter on

merits and dismissed the complaint. Reasonable opportunity

is not given to tender the complainant for cross-examination

and hurriedly dispose of the matter and prays to allow the

appeal, remand the case for fresh disposal after providing

reasonable opportunities for both parties.

3. For the sake of convenience the parties are

referred to by their rank before the trial Court.

4. After due service of notice, respondent has

appeared through counsel.

5. From the perusal of the order sheet indicate that

after closure of examination-in-chief of the complainant two

opportunities were given and after noting that complainant

has not tendered himself for cross-examination, the trial

Court has proceeded to discard his evidence. Having regard

to the fact that the amount involved in the case is

Rs.6,00,000/-, this Court is of the considered opinion that

CRL.A No. 1377 of 2018 NC: 2023:KHC:24257

complainant deserves reasonable opportunity to tender

himself for cross-examination and also lead further evidence,

if any. No prejudice would be caused to the accused as he

would get opportunity to resist the case of the complainant.

Having regard to the fact that this appeal is of the year

2018, this Court is of the considered opinion that it would be

necessary to compensate the respondent/accused for the

delay by imposing cost.

6. For the above reasons, the impugned order is

liable to be set aside and matter requires remand for

disposal in accordance with law and accordingly, I proceed to

pass the following:

ORDER

(i) Appeal is allowed on cost of Rs.5,000/-.

(ii) The impugned judgment and order dated

05.02.2018 passed in C.C.No.13031/2018 on the

file of XIII Addl.CMM, Bengaluru is set aside.

(iii) The complainant and respondent/accused are

directed to appear before the trial Court on

CRL.A No. 1377 of 2018 NC: 2023:KHC:24257

08.08.2023 without waiting for further notice

from the trial Court.

(iv) The complainant is directed to deposit cost of

Rs.5,000/- before the trial Court and accused is

entitled to withdraw the same.

(v) The trial Court is directed to decide the case in

accordance with law, after providing reasonable

opportunity to both parties.

(vi) Of course, if on 08.08.2023, respondent/accused

fails to appear before the Court, the trial Court is

at liberty to take coercive steps against him for

securing his presence.

Sd/-

JUDGE

MDS/RR