Karnataka High Court
Sri. Shritin U vs M/S. Shashi Structure And ... on 14 June, 2023
Bench: J.M.Khazi
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NC: 2023:KHC:20456
CRL.A No. 651 of 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MS JUSTICE J.M.KHAZI
CRIMINAL APPEAL NO.651 OF 2020
BETWEEN:
SRI. SHRITIN U
S/O UMAPATHI RAJ,
AGED ABOUT 31 YEARS,
RESIDING AT NO.102,
TEAM EMERALD,
RUSTUM BHAG MAIN ROAD,
KODIHALLI,
BENGALURU - 560 017.
...APPELLANT
(BY SRI. SAMPATH KUMAR M, ADVOCATE)
AND:
1. M/S. SHASHI STRUCTURE AND PROJECTS
HAVING OFFICE AT NO.509,
16TH CROSS, 5TH MAIN, 6TH SECTOR,
Digitally signed by HSR LAYOUT,
REKHA R BENGALURU - 560087
Location: High
Court of Karnataka
2. M/S. SHASHI STRUCTURE
AND PROJECTS
HAVING OFFICE AT NO.509,
16TH CROSS, 5TH MAIN, 6TH SECTOR,
HSR LAYOUT,
BENGALURU - 560 087
REPRESENTED BY DIRECTOR
T.SHASHIDHAR REDDY
...RESPONDENTS
(BY SRI. DEEKSHA G, ADVOCATE)
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CRL.A No. 651 of 2020
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
378(4) OF CR.PC BY THE ADVOCATE FOR THE APPELLANT
PRAYING THAT THIS HON'BLE COURT MAY BE PLEASED TO a)
SET ASIDE THE DISMISSAL FOR NON PROSECUTION ORDER
DATED 04.11.2019, PASSED BY THE LVII PRESENTLY KNOWN
AS XXXIII ADDL. CHIEF. METROPOLITAN MAGISTRATE,
MAYOHALL UNIT, BENGALURU IN C.C.NO.54612/2018, BY
PROVIDING OPPORTUNITY TO THE APPELLANT TO TENDER
HIMSELF FOR CROSS EXAMINATION ETC; b) PASS SUCH
ORDER OR ORDERS DEEM FIT NECESSARY BY THE HANDS OF
THIS HON'BLE COURT IN THE INTEREST OF JUSTICE.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Though this appeal is posted for admission, with the
consent of learned counsel for the parties the same is
taken up for final disposal.
2. For the sake of convenience the parties are
referred to by their rank before the trial Court.
3. This appeal is by the complainant, challenging
the dismissal of the complaint filed under Section 200
Cr.P.C. against respondents/accused, for the offence
punishable under Section 138 of N.I.Act.
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CRL.A No. 651 of 2020
4. After due service of notice,
respondents/accused have appeared through counsel.
5. Heard and perused the record.
6. It is the case of the complainant that he is
originally from Davanagere. Since he and his wife are
employed in Bengaluru, they decided to settle in
Bengaluru and entered into lease agreement with accused
No.2 and paid Rs.25,00,000/- through RTGS. At the
request of accused No.2, complainant paid further sum of
Rs.6,96,000/- to accused No.2, who was acting on behalf
of accused No.1. However, accused failed to hand over
possession of the house and when insisted upon, accused
Nos.1 and 2 issued cheques for a sum of Rs.28,98,630/-
and Rs.10,44,746/- including the interest. When presented
they were returned dishonored. After issuing legal notice,
complaint was filed. However, on 04.11.2019, trial Court
dismissed the complaint on the ground that complainant
has filed to tender himself for cross-examination.
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CRL.A No. 651 of 2020
6.1 Unfortunately, on 04.09.2019, advocate for
complainant had met with an accident and suffered
fracture. He was under treatment. Consequently, he could
not inform the complainant about the further dates of
hearing. On the other hand complainant was sent to
abroad from 01.11.2019 to 25.11.2019. Therefore, on
04.11.2019, he was unable to present before the Court.
His absence was not intentional. If the complaint is not
restored, complainant would put to great hardship and
prays to allow the appeal, remand the case for disposal in
accordance with law.
7. Notice of this appeal is duly served on accused
and they have appeared through counsel.
8. Admittedly, the complaint came to be dismissed
on the ground that complainant failed to tender himself for
cross-examination. In order to show that both
complainant and his counsel were prevented by sufficient
cause from appearing before the Court on 04.11.2019,
complainant has produced photocopies of the medical
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CRL.A No. 651 of 2020
records of Apollo BGS Hospital, Bengaluru pertaining to his
counsel. He has also produced photocopy of letter, his
passport, boarding pass to show that during the relevant
period, complainant was at California, USA. These
documents supports the contention of the complainant
that absence of himself and his counsel was not
intentional.
9. Consequently, matter requires to be remanded
for trial in accordance with law. No prejudice would be
caused to the respondent/accused as he would get
opportunity to contest the matter. Accordingly, I proceed
to pass the following:
ORDER
(i) Appeal is allowed.
(ii) The impugned judgment and order dated
04.11.2019 is set aside.
(ii) The complainant and respondents/accused are
directed to appear before the trial Court on
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CRL.A No. 651 of 2020
11.07.2023 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 prosecution to examine its
witnesses.
(iv) Of course, if on 11.07.2023,
respondents/accused fails to appear before the
Court, the trial Court is at liberty to take
coercive steps against respondent for securing
their presence.
(v) The registry is directed to send a copy of this
judgment to the trial Court forthwith.
Sd/-
JUDGE
RR
