Smt.Prema Malla Reddy vs Sri.Akram
2023 Latest Caselaw 7563 Kant

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                                                         NC: 2023:KHC:39507
                                                     CRL.A No. 1876 of 2021




                     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                       DATED THIS THE 6TH DAY OF NOVEMBER, 2023

                                         BEFORE
                         THE HON'BLE MR JUSTICE G BASAVARAJA
                         CRIMINAL APPEAL NO.1876 OF 2021 (A)
                BETWEEN:

                1.    SMT.PREMA MALLA REDDY
                      W/O MALLA REDDY, AGED ABOUT 50 YEARS, R/AT
                      NO 111, 2ND CROSS, SUGAMANAGAR LAYOUT,
                      NAYANAPPANAHALLI, NEAR DLF NEW TOWN,
                      BANNERAGHATTA ROAD, BANGALORE 560068
                                                             ...APPELLANT
                (BY SRI NAVEEN KUMAR S., ADVOCATE)

                AND:

                1.    SRI.AKRAM
                      S/O NOT KNOWN, K M C MUTTON CENTRE, NO 45,
                      2ND SECTOR, BEHIND BASAPPA REDDY COMPOUND,
                      OLD AIRPORT ROAD, MARTHAHALLI, BANGALORE
Digitally
signed by             560037
SANDHYA S
                                                          ...RESPONDENT
Location:
High Court of
Karnataka       (BY SRI. AMEENULLA N K., ADVOCATE)

                     CRL.A FILED U/S.378(4) OF CR.P.C PRAYING TO SET
                ASIDE THE ORDER DATED 29.10.2021 IN C.C.NO.17570/2021
                PASSED BY THE XXXVI ADDL.C.M.M., BENGALURU.

                     THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
                THE COURT DELIVERED THE FOLLOWING:
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                                               NC: 2023:KHC:39507
                                           CRL.A No. 1876 of 2021




                        JUDGMENT

Though this appeal is listed for Admission, with the

consent of the learned counsel appearing for the parties, the

same is taken up for final disposal.

2. This appeal is preferred by the

complainant/appellant against the order dated 29th October,

2021 passed in CC.No.17570 of 2021 by the XXXVI ACMM,

Bengaluru.

3. For the sake of convenience, the parties in this

appeal are referred to with their status and rank before the trial

Court.

4. Brief facts of the case are that:-

The respondent-accused had obtained loan of Rs.2.00 lakh

from the appellant for improvement of his mutton stall business

and assured to repay the same within a period of one year.

After completion of one year, when the appellant demanded the

respondent-accused for repayment of the said hand loan, at

that time, the accused issued a cheque bearing No.343751

dated 15th December, 2021 for Rs.2.00 lakh and when the

cheque was presented for encashment, the same was

NC: 2023:KHC:39507 CRL.A No. 1876 of 2021

dishonoured stating "funds insufficient". Thereafter, the

appellant has caused legal notice to the accused to pay the

cheque amount but the respondent-accused refused to receive

the notice. Hence, the appellant has filed complaint under

Section 200 of Code of Criminal Procedure for the offence

punishable under Section 138 of Negotiable Instruments Act in

PCR No.11576 of 2020. After recording the sworn statement of

the complainant, the trial Court has taken cognizance against

the accused for the offence punishable under Section 138 of the

Negotiable Instruments Act and a case came to be registered in

CC No.17570 of 2021 on the file of XXXVI Additional CMM,

Bengaluru. In pursuance of the summons issued by the trial

Court, the accused appeared before the trial Court and his plea

was recorded. Accused pleaded not guilty. The trial Court has

considered the application filed under Section 145(2) of the

Negotiable Instruments Act and for cross of PW1 the case was

posted on 05th October, 2021. On 05th October, 2021 the

accused was present and PW1 remained absent and the case

was adjourned to 16th October, 2021. On 16th October, 2021,

PW1 absent and hence the case was posted for cross of PW1 on

28th October, 2021. On 28th October, 2021, the accused was

NC: 2023:KHC:39507 CRL.A No. 1876 of 2021

present and PW1 remained absent and for cross of PW1 the

case was adjourned to 29th October, 2021. On that day also,

the accused was present and PW1 was absent and hence the

Court has passed order acquitting the accused for the offence

punishable under Section 138 of the Negotiable Instruments

Act. Being aggrieved by the said order, the complainant has

preferred this appeal.

5. Sri Naveen Kumar S., learned Counsel appearing for

the appellant submits that the impugned order of the trial Court

is illegal and same is liable to be set aside. He further submits

that he has taken the adjourned date as 05th November, 2021

instead of 05th October, 2021. Due to this mistake, the

complainant and the Advocate could not appear before the trial

Court on 05th October, 2021 and submits the absence was

neither intentional nor deliberate. Hence, sought to allow the

appeal.

6. Counsel for the Respondent remained absent and

hence the arguments on behalf of the respondent is taken as

Nil.

NC: 2023:KHC:39507 CRL.A No. 1876 of 2021

7. I have carefully examined the order sheet passed

buy the trial Court in CC No.17570 of 2021. The impugned

order dated 29th October, 2021, reads as under:

"Case called out.

Accused present.

Complainant and L/C for the complainant absent.

No representation.

In spite of giving sufficient opportunities, the complainant is not present before the Court for cross examination. There is no reason for the complainant to show that why he is absent before the Court. It shows that he is not interested to proceed with the complaint.

According to Section 256 of the Cr.P.C., if the summons has been issued on complaint and on the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall acquit the accused, unless for the reasons he think it proper to adjourn the hearing of the case to some another day; provided that where the complainant is represented by a pleader or by officer conducting the prosecution or where the Magistrate is of opinion that the personal attendance of the complainant is not necessary the Magistrate may dispense with his attendance and proceed with the case.

In the case on hand, the accused is regularly present before the Court and the complainant is absent before the Court and the presence of the complainant is

NC: 2023:KHC:39507 CRL.A No. 1876 of 2021

very much necessary for the purpose of cross- examination but he is not present before the Court. I do not find any reason to adjourn the case to some other day. Hence, in view of Section 256 of Cr.P.C, I hereby pass the following:

ORDER The accused is hereby acquitted for the offence punishable under section 138 of the NI Act.

The bail bond of the accused hereby stands cancelled.

8. Considering the submission made by the learned

counsel for the appellant-complainant, this Court is of the

opinion that, in the interest of justice, one more opportunity is

to be given to the complainant to prosecute this case. Hence, I

proceed to pass the following:

ORDER

1. Appeal is allowed;

2. Order dated 29th October, 2021 passed in CC

No.17570 of 2021 is set aside and the case is

restored to file;

3. The case is remitted back to the trial Court with

a direction to provide opportunity to the

complainant to prosecute this case;

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4. Appellant/Complainant is directed appear

before the trial Court on 01st December,

2023 without awaiting any notice in this

regard; and the trial Court is directed to secure

the accused and after the presence of the

accused, the Trial Court shall proceed with the

case in accordance with law.

Sd/-

JUDGE

LNN