Karnataka High Court
Sri.Chepuddira Poonacha ... vs M/S Bitfox ... on 17 July, 2023
Bench: J.M.Khazi
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CRL.A No. 604 of 2023
NC: 2023:KHC:24742
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MS JUSTICE J.M.KHAZI
CRIMINAL APPEAL NO.604 OF 2023
BETWEEN:
SRI. CHEPUDDIRA POONACHA MUTHANNA
RETD. COLONEL,
S/O LATE POONACHA,
AGED ABOUT 62 YEARS,
R/AT HOME ESTATE ATHUR VILLAGE
AND POST (VIA) POLLIBETTA
VIRAJPET TALUK
KODAGU DISTRICT
...APPELLANT
(BY SRI. HARSHA G, ADVOCATE FOR
SRI. SACHIN B S, ADVOCATE)
AND:
1. M/S. BITFOX ENTERPRISES/PROPRIETORSHIP/
PRIVATE LIMITED
Digitally signed
by REKHA R THROUGH THE DIRECTOR/
Location: High AUTHORIZED REPRESENTATIVES
Court of
Karnataka
SMT. DURGI
DIRECTOR/ PROPRIETRESS/
AUTHORIZED REPRESENTATIVE,
M/T BITFOX ENTERPRISES/PROPRIETORSHIP/
PRIVATE LIMITED
2. SRI. OM SANWARIA
DIRECTOR/PROPRIETOR/
AUTHORIZED REPRESENTATIVE
M/S. BITFOX ENTERPRISES/ PROPRIETORSHIP/
PRIVATE LIMITED
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CRL.A No. 604 of 2023
NC: 2023:KHC:24742
BOTH OF THE RESPONDENT NO.1 AND 2
R/AT G-202, KONARK ORCHID
VAGHOLI, PUNE - 412 207, MAHARASHTRA
ALSO AT:
CITY VISTA, 15A, FOURTH FLOOR,
FOUNTAIN ROAD, KHARADI
PUNE - 411 014, MAHARASHTRA
ALSO AT:
A-16, MADIPUR COLONY,
WEST DELHI - 110 063
...RESPONDENTS
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
378(4) OF CR.P.C PRAYING TO SET ASIDE THE IMPUGNED
ORDER DATED 10.02.2023 IN PCR NO.395/2021 ON THE FILE
OF THE COURT OF CIVIL JUDGE AND JMFC PONNAMPET, AND
CONSEQUENTLY RESTORE THE COMPLIANT IN PCR
NO.395/2021 ON THE FILE OF THE COURT OF CIVIL JUDGE
AND JMFC PONNAMPET, IN THE INTEREST OF JUSTICE AND
EQUITY.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is by the complainant, challenging the
dismissal of the complaint filed by him against
respondents/accused for the offence punishable under
Section 138 of N.I.Act, contending that the cheques issued
by the respondents/accused towards repayment of legally
recoverable debt came to be dishonored. After issuing
CRL.A No. 604 of 2023
NC: 2023:KHC:24742
legal notice and on failure of respondents/accused to pay
the amount due, he filed complaint under Section 200
Cr.P.C. The trial Court posted the matter for sworn
statement of complainant. Due to his ill health,
complainant could not appear before the Court and record
his sworn statement. On 10.02.2023, the trial Court
dismissed the complaint for default. The absence of
complainant was not intentional. If the complaint is not
restored, complainant would be put to great hardship and
prays to allow the appeal.
2. Heard arguments and perused the record.
3. It is the case of the complainant that
respondents being the Directors/Proprietors/Authorized
representative of M/s Bit Fox Enterprises are wholesale
purchasers of I-phones. Their business method is to take
investments from individuals, purchase I-phones at
wholesale rates and sell to retail dealers with huge profit.
With that profit, money invested be returned along with
goods such as washing machines, laptops, computers,
CRL.A No. 604 of 2023
NC: 2023:KHC:24742
electronic items, mobile phones, two wheelers and cars or
cash back schemes. In this regard complainant invested
Rs.5. lakhs, which was promised to be repaid with profit of
Rs.50,000/-. During 2020, complainant expressed his
interest in purchasing a car worth Rs.48 lakhs. He was
promised that accused would arrange for a cash back in a
month and delivery of car within two months. Accordingly,
complainant remitted Rs.48 lakhs. However, accused have
neither returned the money nor delivered the car. When
insisted upon, accused have issued cheque for Rs.48
lakhs, under the signature of accused No.1. However,
when presented, the same was dishonored for insufficient
funds.
4. From the order sheet it is evident that from
18.08.2022, five adjournments have been granted for
sworn statement of the complainant. Ultimately, on
10.02.2023, the complaint was dismissed for default, on
the ground that the complainant has not turned up.
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NC: 2023:KHC:24742
5. It is being challenged in the present appeal
contending that due to ill health, he could not appear. It
appears complainant is a retired Colonel. When complaint
was filed he is shown to be 60 years. Even though no
documents are produced to show that when the complaint
was dismissed, the complainant was suffering from ill
health, having regard to the fact that the cheque amount
is Rs.48 lakhs, this Court is of the considered opinion that
one more chance be given to the complainant to prosecute
the complaint. Since by the time complaint was dismissed,
accused had not appeared, no prejudice would be caused
to them. Of course they would get reasonable opportunity
to prove their defence.
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.
CRL.A No. 604 of 2023
NC: 2023:KHC:24742
(ii) The impugned order dated 10.02.2023 passed
in PCR.No.395/2021 on the file of Civil Judge &
JMFC., Ponnampet, Kodagu-Madikeri District is
set aside.
(ii) The complainant is directed to appear before
the trial Court on 21.08.2023 without waiting
for further notice from the trial Court.
(iii) The trial Court is directed to decide the case in
accordance with law, after providing reasonable
opportunity to both parties.
Sd/-
JUDGE
RR
