Dr P D Ekambaram vs B Nagaraje Urs
2023 Latest Caselaw 3345 Kant

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                                               NC: 2023:KHC:20570
                                                CRL.A No. 1872 of 2018




               IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                      DATED THIS THE 15TH DAY OF JUNE, 2023

                                      BEFORE
                        THE HON'BLE MS JUSTICE J.M.KHAZI
                        CRIMINAL APPEAL NO.1872 OF 2018
               BETWEEN:

                   DR P D EKAMBARAM
                   S/O LATE DR P C DORESWAMY
                   AGED ABOUT 69 YEARS
                   R/AT DEVEERAMMANAHALLI EXTENSION
                   KASABA HOBLI
                   NANJANGUD TALUK
                   MYSORE DISTRICT - 571 301
                                                          ...APPELLANT
               (BY SRI. CHANDRASHEKARA K A, ADVOCATE)

               AND:

                   B NAGARAJE URS
                   S/O LATE BASAVARAJE URS
                   AGED ABOUT 62 YEARS
                   R/O NO.69, BASAVESHWARA NILAYA
Digitally signed
by REKHA R         PRAGATHINAGARA
Location: High     DEVEERAMMANAHALLI EXTENSION
Court of           KASABA HOBLI
Karnataka          NANJANGUD TALUK
                   MYSORE DISTRICT - 571 301
                                                        ...RESPONDENT
               (BY SRI. N.NANJUNDASWAMY, ADVOCATE)

                    THIS CRIMINAL APPEAL IS FILED UNDER SECTION
               378(4) OF CR.P.C PRAYING TO SET ASIDE THE ORDER DATED
               28.09.2017 PASSED IN C.C.NO.770/2012 BY THE LEARNED
               PRINCIPAL CIVIL JUDGE & J.M.F.C., NANJANGUD, MYSORE
               DISTRICT AND RESTORE THE CASE TO ITS ORIGINAL FILE FOR
               THE OFFENCE PUNISHABLE UNDER SECTION 138 OF
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                                     NC: 2023:KHC:20570
                                      CRL.A No. 1872 of 2018




NEGOTIABLE INSTRUMENTS ACT, TO MEET THE ENDS OF
JUSTICE.

     THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:

                        JUDGMENT

Though this appeal is listed for admission, with the

consent of both learned counsel for parties the matter 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 by him against

respondent/accused for the offences 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

NC: 2023:KHC:20570 CRL.A No. 1872 of 2018

marked the documents. However, on 28.09.2017, 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

was suffering from heart problem, thyroid, kidney problem

and for this reason, he could not appear before the Court.

In the circumstances, the complaint is required to be

restored and reasonable opportunity be given to the

complainant to prosecute the complaint.

4. After due service of notice, respondent has

appeared through counsel.

5. So far as complainant not tendering himself for

cross-examination, he has contended that at the relevant

point of time, he was suffering serious ailments. This fact

is not seriously disputed by the accused. The perusal of

the order sheet indicate that on number of hearing dates,

complainant was present and adjournments have been

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

NC: 2023:KHC:20570 CRL.A No. 1872 of 2018

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

Rs.35,00,000/- 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.

6. 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.

(ii) The impugned judgment and order dated

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

NC: 2023:KHC:20570 CRL.A No. 1872 of 2018

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

aside.

(ii) The complainant and respondent/accused are

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 providing reasonable

opportunity to both parties.

(iv) Of course, if on 11.07.2023,

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