Sri Puttathayamma vs Sri Nanjaiah
2023 Latest Caselaw 4822 Kant

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                                                 CRL.A No.224 of 2022
                                                    NC: 2023:KHC:25720




               IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                      DATED THIS THE 25TH DAY OF JULY, 2023

                                      BEFORE
                        THE HON'BLE MS JUSTICE J.M.KHAZI
                        CRIMINAL APPEAL NO.224 OF 2022
               BETWEEN:

                   SMT. PUTTATHAYAMMA
                   W/O N B KANTHARAJU
                   AGED ABOUT 62 YEARS
                   R/AT GNANABINDU NILAYA
                   D.NO.1065/6
                   SHADAKASHRA MUTT EXTENSION
                   KANCHEGHATTA
                   TIPATURU,
                   TUMAKURU DISTRICT - 572 201
                                                           ...APPELLANT

               (BY SRI. SHANKARANARAYANA BHAT B &
                   SRI. S N BHAT, ADVOCATES)

               AND:
Digitally signed
by REKHA R         SRI NANJAIAH
Location: High     S/O VENKATAPPA
Court of           AGED MAJOR
Karnataka          R/AT HIREBIDARE VILLGE
                   KASABA HOBLI
                   TIPATURU TALUK
                   TUMAKURU DISTRICT - 572 201
                                                         ...RESPONDENT
               (BY SRI. RANGANATHA R, ADVOCATE)

                    THIS CRIMINAL APPEAL IS FILED UNDER SECTION
               378(4) OF CR.P.C BY PRAYING TO SETTING ASIDE THE
               ORDERS PASSED BY THE LEARNED PRINCIPAL CIVIL JUDGE
               AND J.M.F.C., TIPATUR IN C.C.NO.2386/2015 DATED
               04.01.2022, IN THE INTEREST OF JUSTICE.
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                                     CRL.A No.224 of 2022
                                             NC: 2023:KHC:25720




    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

respondent/accused for the offence punishable under

Section 138 of N.I.Act, contending that the cheques 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. After appearance of accused and he pleading not

guilty, complainant has examined himself as PW-1 and got

marked the documents. However, on 04.01.2022, when

the case was posted for his cross-examination, the

complaint came to be dismissed on the ground that

complainant has not tendered himself for cross-

examination. At the relevant point of time, complainant

had gone to Bengaluru for medical consultation for his

orthopedic problem. Because of the said reason, he could

CRL.A No.224 of 2022 NC: 2023:KHC:25720

not present before the Court and the case was dismissed

for non-prosecution. In the circumstances, the complaint is

required to be restored and reasonable opportunity be

given to the complainant to prosecute the complaint.

2. For the sake of convenience the parties are

referred to by their rank before the trial Court.

3. After due service of notice, respondent has

appeared through counsel.

4. So far as complainant not tendering himself for

cross-examination, he has contended that at the relevant

point of time, he was suffering orthopedic problem and

had gone to Bengaluru for treatment. This fact is not

seriously disputed by the accused. The perusal of the

order sheet indicate that on few hearing dates,

complainant was present and adjournments have been

granted at the request of accused. It appears on some of

the hearing dates, matter could not reach and as such

case was adjourned. Having regard to the fact that the

amount involved in the case is to the tune of

CRL.A No.224 of 2022 NC: 2023:KHC:25720

Rs.5,00,000/- and taking into consideration the number of

adjournments granted, for reasons other than complainant

not being present, this Court is of the considered opinion

that complainant be given one more opportunity to tender

himself for cross-examination and also prosecute his case.

No prejudice would be caused to the accused as he would

get opportunity to resist the case of the complainant.

5. 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, subject to payment of cost of

Rs.5,000/- to the respondent/accused.

(ii) The impugned judgment and order dated

28.09.2017 passed in C.C.No.770/2012 on the

file of Prl.Civil Judge & JMFC., Nanjangud is set

aside.

CRL.A No.224 of 2022 NC: 2023:KHC:25720

(ii) The complainant and respondent/accused are

directed to appear before the trial Court on

16.08.2023 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.

(iv) Of course, if on 16.08.2023,

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

RR