Karnataka High Court
M/S. Abhi Varna Enterprises vs Sai Sreenidhi Projects on 28 July, 2023
Bench: J.M.Khazi
-1-
CRL.A No. 73 of 2019
NC: 2023:KHC:26333
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MS JUSTICE J.M.KHAZI
CRIMINAL APPEAL NO.73 OF 2019
BETWEEN:
M/S. ABHI VARNA ENTERPRISES
NO.94, 1ST FLOOR,
AVENUE ROAD
BENGALURU - 560 002
REPTD. BY ITS PARTNER
SRI D V SHEKAR
S/O D VENKATARAMAN
AGED ABOUT 59 YEARS
...APPELLANT
(BY SRI. ANNAIAH C V, ADVOCATE)
AND:
1. SAI SREENIDHI PROJECTS
NO.4, 1ST FLOOR,
KJN TOWERS, 21ST MAIN,
Digitally signed NEAR BDA COMPLEX
by REKHA R
II STAGE, BANGALORE - 560 070
Location: High REPTD. BY ITS AUTHORIZED
Court of
Karnataka SIGNATORY / PARTNERS
SRI K SIVARAJA NAIDU
SRI D RAJENDRA
2. SRI K SIVARAJA NAIDU
S/O LATE NARAYANA SWAMY
AGED ABOUT 58 YEARS,
R/AT FLAT NO.101
SAPTHAGIRI RESIDENCY
NO.118/4, 7TH CROSS,
B.S.K. III STAGE
BENGALURU - 560 085
-2-
CRL.A No. 73 of 2019
NC: 2023:KHC:26333
3. SRI D RAJENDRA
S/O GOVINDA NAIDU
AGED ABOUT 57 YEARS,
NO.25, CANARA BANK COLONY
NEAR MADHURA RESIDENCY
SUBRAMANYAPURA MAIN ROAD
GOWDANAPALYA
BENGALURU - 560 061
...RESPONDENTS
(BY SRI. SOMASEKHAR NAIDU B, ADVOCATE FOR R1 & R2;
R3-SERVED)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
378(4) OF CR.P.C PRAYING TO SET ASIDE THE ORDER DATED
26.09.2018 ON THE FILE OF THE XXI ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE AND XXIII ADDITIONAL SMALL
CAUSES JUDGE AT BENGALURU IN C.C.NO.19237/2009 AND
RESTORE THE ABOVE CASE AGAINST THE RESPONDENT NO.2
AND PERMIT THE APPELLANT TO PROCEED THE CASE AGAINST
THE 2ND RESPONDENT IN SEPARATE PROCEEDINGS IN THE
COURT BELOW, 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 it as against respondent
No.2/accused No.2, in a complaint filed against respondent
Nos.1 to 3/accused for the offence punishable under
Section 138 of N.I.Act. It is contended by the complainant
that though initially respondent No.2/accused No.2
appeared and secured bail, later on he remained absent.
CRL.A No. 73 of 2019
NC: 2023:KHC:26333
On 26.09.2018, the trial Court dismissed the complaint as
against respondent No.2/accused No.2 by observing that
steps have not been taken against him despite giving
sufficient time. Though, complainant taken steps against
all the accused, intentionally they remained absent to drag
on the proceedings.
2. Learned counsel for complainant submitted that
in fact the trial was proceeded against respondent Nos.1
and 3/accused Nos.1 and 3 and they have been convicted
and appeal filed by them was also dismissed. In the
circumstances, he prays to allow the appeal, restore the
complaint so as to enable complainant to proceed against
him.
3. After due service of notice respondent Nos.1
and 2 have appeared through counsel.
4. Respondent No.3 is also duly served.
5. Perusal of the order sheet of the trial Court
reveal that though duly served and respondent No.2
CRL.A No. 73 of 2019
NC: 2023:KHC:26333
appeared and secured bail and engaged services of same
counsel as that of accused No.1, later on he has remained
absent. He was aware of the pendency of the proceedings.
Having regard to the fact that the cheque amount involved
is Rs.10,00,000/-, out of which they have repaid
Rs.7,00,000/-. With regard to the remaining Rs.3,00,000/-
cheques issued are dishonored. Considering these aspects,
it would be appropriate to provide on more opportunity to
the complainant to proceed against respondent
No.2/accused No.2. No prejudice would be caused to him
as he would get opportunity to cross-examine the
complainant and his witnesses and also lead evidence on
his behalf.
6. For these reasons, this Court is of the
considered opinion that the appeal deserves to be allowed
and accordingly, I proceed to pass the following:
ORDER
(i) Appeal is allowed as against respondent
No.2/accused No.2.
CRL.A No. 73 of 2019
NC: 2023:KHC:26333
(ii) Appeal is dismissed as against respondent
Nos.1 and 3/accused Nos.1 and 3.
(iii) The impugned order dated 26.09.2018 passed
in C.C.No.19237/2009 on the file of XXI
Additional Chief Metropolitan Magistrate and
XXIII Additional Small Causes Judge,
Bengaluru, dismissing the complaint against
respondent No.2/accused No.2 is set aside.
(iii) Appeal is restored to file as against respondent
No.2/accused No.2.
(iv) Both complainant and respondent No.2/accused
No.2 are directed to appear before the trial
Court on 21.08.2023 without waiting for further
notice and prosecute the complaint diligently
without seeking unnecessary adjournments.
(iv) The trial Court is directed to decide the case in
accordance with law.
Sd/-
JUDGE
RR
