Karnataka High Court
Housing Development Finance vs Mr Polanki Bharath on 14 June, 2023
Bench: J.M.Khazi
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NC: 2023:KHC:20455
CRL.A No. 1124 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.1124 OF 2020
BETWEEN:
HOUSING DEVELOPMENT FINANCE
CORPORATION LTD, (HDFC LTD)
NO.51, HDFC HOUSE, KASTURBA ROAD,
BENGALURU - 560 001.
REPRESENTED BY ITS
POWER OF ATTORNEY HOLDER,
SENIOR MANAGER
CREDIT RISK MANAGEMENT LEGAL
SREEDAR CHINNI
...APPELLANT
(BY SRI. H.R SUNIL KUMAR &
SRI. SHIVASHANKAR A, ADVOCATES)
AND:
MR. POLANKI BHARATH
Digitally signed
by REKHA R S/O. SRIKANTH POLANKI,
Location: High AGED ABOUT 35 YEARS
Court of NO.14, 2ND FLOOR, 35TH CROSS,
Karnataka BEHIND ST. MARYS ORTHODOX CHURCH,
J.K.VILLAGE, JALAHALLI POST,
BENGALURU - 560 013.
AND ALSO AT
ASSISTANT MANAGER,
P & A OPERATOR,EMP NO.107005,
IBM INDIA PVT. LTD., NO.97, B-BLOCK,
PRASAD TECHNOLOGY PARK,
EPIP, WHITE FILED,
BENGALURU - 560 066
...RESPONDENT
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NC: 2023:KHC:20455
CRL.A No. 1124 of 2020
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
378(4) OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT
PASSED IN C.C.NO.33217/2018 DATED 11.11.2019 WHICH IS
PASSED BY THE HON'BLE XXV ADDL. CHIEF METROPOLITAN
MAGISTRATE, BENGALURU CITY, CONSEQUENTLY CONVICT /
PUNISH THE RESPONDENT FOR THE OFFENCE PUNISHABLE
UNDER SECTION 138 OF N.I.ACT, 1881 BY ALLOWING THE
APPEAL, GRANT SUCH OTHER RELIEF/S THAT THIS HON'BLE
COURT DEEMS FIT IN FACTS AND CIRCUMSTANCES OF CASE,
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 under Section 200 Cr.P.C.
against respondent/accused, for the offence punishable
under Section 138 of N.I.Act.
2. For the sake of convenience the parties are
referred to by their rank before the trial Court.
3. Since the complaint came to be dismissed for
non-prosecution by the trial Court before the appearance
of accused, before this Court notice to him is dispensed
with.
4. It is the case of the complainant that it is a
Housing Development Corporation, contending that
NC: 2023:KHC:20455
CRL.A No. 1124 of 2020
accused availed loan of Rs.22,00,000/- and out of it a sum
of Rs.16,28,000/- was disbursed. He became defaulter and
repeated request and demand, accused has issued cheque
for Rs.22,00,000/-. When presented for encashment, it
was returned dishonored with endorsement "funds
insufficient". After issue of legal notice, complaint was
filed. On 11.11.2019, the trial Court dismissed the
complaint on the ground that steps have not been taken
since 15.12.2018.
6.1 Aggrieved by the same, complainant has filed
this appeal, contending that from 15.12.2018, the case
was posted to 22.02.2019. Since the Presiding Officer was
transferred, the case was adjourned to 27.09.2019.
However, the learned counsel who was attending the
matter noted the wrong date. He abruptly left the office.
When the counsel for complainant attended the case, it
was realized that the complaint was dismissed on
11.11.2019 for non-prosecution. The absence of the
complainant and his counsel was not intentional. If the
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CRL.A No. 1124 of 2020
complaint is not restored, complainant would be put to
great hardship. Moreover, public money is involved and
prays to allow the appeal, remand the case for disposal.
5. Though duly served with notice,
respondent/accused has failed to appear and contest the
matter.
6. Admittedly, the complaint came to be dismissed
at the initial stage for not taking steps against
respondent/accused. The contention of the complainant
that the official of the complainant and their counsel failed
to attend the case as a wrong date was noted on the file,
is not disputed by the respondent/accused. 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:
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CRL.A No. 1124 of 2020
ORDER
(i) Appeal is allowed.
(ii) The impugned judgment and order dated
11.11.2019 is set aside.
(ii) The complainant is directed to appear before
the trial Court on 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 securing the
presence of accused and providing reasonable
opportunity to both parties.
(iv) The registry is directed to send a copy of this
judgment to the trial Court forthwith.
Sd/-
JUDGE
RR
