M/S Concept Packaging Industries vs M/S Zee Enterprises
2023 Latest Caselaw 7818 Kant

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                                                      NC: 2023:KHC:41329
                                                  CRL.A No. 2043 of 2019




                    IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                     DATED THIS THE 18TH DAY OF NOVEMBER, 2023

                                        BEFORE
                        THE HON'BLE MR JUSTICE G BASAVARAJA
                          CRIMINAL APPEAL NO. 2043 OF 2019
               BETWEEN:

               M/S CONCEPT PACKAGING INDUSTRIES
               (A SOLE PROPRIETARY CONCERN)
               HAVING ITS PLACE OF BUSINESS AT:
               NO.36/7, KODIGEHALLI,
               SADAMANGALA MAIN ROAD,
               KADUGODI POST, BENGALURU - 560 067,
               THROUGH ITS PROPRIETOR,
               MR. SWARUP SRIDHAR,
               REP. BY HIS POWER-OF-ATTORNEY,
               MR. SRIDHAR ALAMPALLI.
                                                               ...APPELLANT
               (BY SRI. MANJE GOWDA B.V., ADVOCATE FOR
                   SRI. CHANDRASHEKARA K.A., ADVOCATE)

               AND:

Digitally      1.    M/S. ZEE ENTERPRISES,
signed by
SANDHYA S            (A PARTNERSHIP FIRM ORGANIZED
Location:            UNDER THE PROVISIONS OF THE
High Court           INDIAN PARTNERSHIP ACT, 1932)
of Karnataka
                     HAVING ITS OFFICERS AT:
                     SHERNO LIMITED COMPOUND, NO.16/225,
                     WHITEFILED, KADUGODI VILLAGE,
                     BIDARAHALLI HOBLI, BENGALURU - 560 002.

                     REP. BY ITS PARTNERS,
                     MR. N. NASEER AHMED AND
                     MR. RAHUL GARG.

               2.    MR. N. NASEER AHMED,
                     PARTNER, M/S. ZEE ENTERPRISES,
                     SOON OF MR. K.M. NISAR AHMED,
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                                             NC: 2023:KHC:41329
                                        CRL.A No. 2043 of 2019




     AGED ABOUT 43 YEARS,
     R/AT: #2/1, 6TH A CROSS,
     DHEER SINGH LANE,
     LALBAGH FRONT ROAD,
     DODDAMAVALLI, BENGALURU - 560 004.

3.   MR. RAHUL GARG,
     PARTNER, M/S. ZEE ENTERPRISES,
     S/O MR. KUMAR SHYAM GARG,
     AGED ABOUT 52 YEARS,
     R/AT #f-722, SENA VIHAR,
     KAMANNAHALLI MAIN ROAD,
     KALYAN NAGAR, BENGALURU - 560 043.
                                         ...RESPONDENTS
(BY SRI. R. RANGANATH, ADVOCATE FOR R1 TO R3;
    NOTICE TO R2 IS DISPENSED WITH VIDE COURT
    ORDER DATED 18.11.2023)

      THIS CRL.A IS FILED U/S.378(4) OF CR.P.C PRAYING TO
SET ASIDE THE ORDER DATED 06.11.2019 PASSED BY THE
XVII ADDITIONAL SMALL CAUSES JUDGE AND ADDL. CHIEF
METROPOLITAN MAGISTRATE MAYO HALL UNIT, BENGALURU
IN C.C.NO.51617/2015 FOR THE OFFENCE PUNISHABLE UNDER
SECTION 138 OF NI ACT.

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

                          JUDGMENT

Heard the arguments of the learned counsel for the

appellant.

2. Appellant/counsel has preferred this appeal

against the order passed by the trial Court dated

06.11.2019.

NC: 2023:KHC:41329 CRL.A No. 2043 of 2019

3. The rank of the parties in this appeal are

referred in the same rank as referred by the Trial court.

4. The complainant filed a complaint against the

accused under Section 200 of Cr.P.C. for commission of

offence punishable under Section 138 of N.I. Act. The trial

Court has taken cognizance against the accused for the

alleged commission of offence and a case was registered

in C.C.No.51617/2015 and summons was issued to the

accused. Accused Nos.2 and 4 appeared before the Court

and enlarged on bail on 09.09.2015 and summons was

issued to accused No.3. Accused No.3 did not appear

before the Court. Hence, NBW was issued against accused

No.3. After obtaining bail, accused Nos.2 and 4 were also

remained absent and NBW was issued against them. On

06.11.2019, the trial Court passed the following order:

"A4 is absent. EP filed. Complainant is absent, no representation. Call later. Sd.- 6/11 Called at 3.35 PM. Complainant is absent. No representation. Steps against A2 not taken and

NC: 2023:KHC:41329 CRL.A No. 2043 of 2019

complainant not produced the original documents. Hence, complaint is dismissed for non presentation."

5. On perusal of the certified copy of the order

sheet, it reveals that since from the date of taking

cognizance, accused No.3 did not appear before the trial

Court, but the trial Court has not issued summons or NBW

to accused No.3 since 20.01.2017 to 06.11.2019. Only

after issuing proclamation, accused No.4 appeared before

the trial Court and thereafter, enlarged on bail, but there

is no reference as to accused No.3. Even on 06.11.2019,

the trial Court has not observed as to the presence of

accused Nos.1 to 3. NBW was issued to accused No.2, but

the same was not returned by the concerned police. But

the trial Court did not call for any explanation from the

concerned police for non execution of NBW which was

issued against accused No.2. Though the complainant has

taken steps for issuing NBW to accused, the trial Court has

not issued NBW to accused Nos.1 to 3 in accordance with

law. Without perusal of previous order sheet and without

application of mind, the trial Court has blindly passed the

NC: 2023:KHC:41329 CRL.A No. 2043 of 2019

impugned order, which is not sustainable under law.

Hence, I proceed to pass the following:

ORDER

i. The appeal is allowed;

ii. The impugned order dated 06.11.2019 passed in C.C.No.51617/2015 by the XVII Addl. Small Causes Judge & Addl. Chief Metropolitan Magistrate, Mayo Hall Unit, Bengaluru is set aside;

iii. The trial Court is directed to restore C.C.No.51617/2015;

iv. The complainant/appellant is directed to appear before the trial Court on 11.12.2023 without seeking any further notice from the trial Court without fail;

v. The trial Court is directed to secure the presence of the accused and proceed with the case in accordance with law;

vi. Registry to send a copy of this judgment to the concerned trial Court.

Sd/-

JUDGE PGG CT: BHK