Sri. Rahul Singh. D vs Sri. A. Chinnappa
2023 Latest Caselaw 3103 Kant

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                                                 NC: 2023:KHC:19787
                                                 CRL.A No. 1352 of 2018




                IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                      DATED THIS THE 9TH DAY OF JUNE, 2023

                                        BEFORE
                        THE HON'BLE MS JUSTICE J.M.KHAZI
                        CRIMINAL APPEAL NO. 1352 OF 2018


              BETWEEN:

              SRI. RAHUL SINGH. D,
              S/O DAULATHRAM SINGH,
              AGED ABOUT 36 YEARS,
              R/AT NO. 67, 3RD CROSS,
              ANJINAPPA LAYOUT,
              KOTHANUR,
              BANGALORE - 560 077.
                                                           ...APPELLANT

              (BY SRI. JAGADEESWAR J., ADVOCATE)

              AND:

                 SRI. A. CHINNAPPA,
                 S/O. LATE ANNAYAPPA,
Digitally signed AGED ABOUT 46 YEARS,
by REKHA R
                 R/AT. BEHIND BHARATH GAS,
Location: High
Court of         PRASHANTHANAGAR,
Karnataka        DEVANAHALLI - 562 110,
                 BANGALORE RURAL DISTRICT.
                                                         ...RESPONDENT

              (RESPONDENT-SERVED)

                   THIS CRL.A. IS FILED UNDER SECTION 378(4) OF
              CRIMINAL PROCEDURE PRAYING TO SET ASIDE THE
              IMPUGNED ORDER OF DISMISSED FOR NON PROSECUTION
              DATED 14.05.2018 PASSED BY THE LVIII ADDL.C.M.M.,
              BENGALURU IN C.C.NO.51902/2017 AND CONSEQUENTLY
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                                          NC: 2023:KHC:19787
                                          CRL.A No. 1352 of 2018




ALLOW THIS APPEAL BY ALLOWING THE APPELLANT TO
PROCEED WITH THE CASE BEFORE THE COURT BELOW.

    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 offences punishable under

Section 138 of N.I.Act, contending that

respondent/accused borrowed a sum of Rs.15,00,000/-

and towards repayment of the same issued cheque dated

25.05.2016. When it was presented for encashment, it

was returned dishonoured on the ground of "insufficiency

of funds". After issuing legal notice and complying with all

the formalities, he filed the complaint. Accused appeared

and contested the case. In fact complainant examined

himself as PW-1 and got marked documents. However, on

15.04.2018, on the ground that he did not subject himself

for cross-examination, complaint is dismissed.

NC: 2023:KHC:19787 CRL.A No. 1352 of 2018

2. For the sake of convenience the parties are

referred to by their rank before the trial Court.

3. Notice of this appeal was duly served on the

accused, but he failed to contest.

4. So far as complainant not tendering himself for

cross-examination, he has contended that though from

11.04.2018 the case was posted to 14.05.2018, however,

the junior colleague of his counsel wrongly noted the date

as 18.06.2018. Therefore, he could not present on

14.05.2018 and the complaint came to be dismissed. This

fact came to light only on 18.06.2018, when on being

questioned by his counsel as to why the case was not

listed on that day, the bench clerk informed that the

complaint is already dismissed on 14.05.2018. The

absence of complainant and his counsel on 14.05.2018

was not intentional and prays to allow the appeal, restore

the complaint and remand the matter for disposal in

accordance with law.

5. Heard arguments and perused the record.

NC: 2023:KHC:19787 CRL.A No. 1352 of 2018

6. The reasons assigned by the complainant for

not tendering for cross-examination on 14.05.2018 is not

disputed by the accused. From the order sheet it is evident

that the trial Court has granted reasonable opportunities

to the complainant to tender himself for cross-examination

and ultimately, on 14.05.2018, it has dismissed the

complaint. In the light of the reasons assigned by the

complainant for his non-appearance, which fact is not

disputed by the accused, this Court is of the considered

opinion that one more opportunity be given to the

complainant to prosecute the complaint. No prejudice

would be caused to the accused as he would get

opportunity to cross-examine him.

7. 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.

NC: 2023:KHC:19787 CRL.A No. 1352 of 2018

(ii) The impugned judgment and order dated

14.05.2018 is set aside.

(ii) The complainant and respondent/accused are

directed to appear before the trial Court on

04.07.2023 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 04.07.2023,

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