K Chandrashekhar Bhat vs Arun Kumar
2023 Latest Caselaw 7098 Kant

Citation : 2023 Latest Caselaw 7098 Kant
Judgement Date : 9 October, 2023

Karnataka High Court

K Chandrashekhar Bhat vs Arun Kumar on 9 October, 2023

Bench: S Rachaiah

                                             -1-
                                                        NC: 2023:KHC:36549
                                                    CRL.A No. 1063 of 2019




                IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                      DATED THIS THE 9TH DAY OF OCTOBER, 2023

                                        BEFORE
                        THE HON'BLE MR JUSTICE S RACHAIAH
                       CRIMINAL APPEAL NO. 1063 OF 2019 (A)
              BETWEEN:

              K. CHANDRASHEKHAR BHAT,
              S/O RAMACHANDRA BHAT,
              AGE: 53 YEARS,
              R/O NO.42, 4TH CROSS,
              8TH MAIN, GANESHA BLOCK,
              NANDINI LAYOUT, BANGALORE - 96.
                                                               ...APPELLANT
              (BY SRI. NARASIMHA PRASAD S. D, ADVOCATE)

              AND:

              ARUN KUMAR,
              S/O PUTTASWAMY,
              AGED: 52 YEARS,
Digitally
signed by N   R/O NO.99, 14TH A MAIN,
UMA
Location:     14TH A CROSS, 2ND PHASE,
HIGH
COURT OF      WEST OF CHORD ROAD,
KARNATAKA     MAHALAKSHMIPURAM,
              BANGALORE - 560 086.
                                                             ...RESPONDENT
              (BY SRI. JAVEED S, AMICUS CURIAE)

                     THIS CRIMINAL APPEAL IS FILED UNDER SECTION
              378(4) OF CRIMINAL PROCEDURE CODE PRAYING TO SET
              ASIDE    THE   ORDER   DATED     05.05.2017   PASSED   BY THE
              XXII    ADDITIONAL     CHIEF    METROPOLITAN     MAGISTRATE
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                                          NC: 2023:KHC:36549
                                      CRL.A No. 1063 of 2019




BENGALURU      IN   C.C.NO.16140/2015-ACQUITTING        THE
RESPONDENT/ACCUSED      FOR    THE    OFFENCE   PUNISHABLE
UNDER SECTION 138 OF N.I. ACT.

     THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE

COURT DELIVERED THE FOLLOWING:


                       JUDGMENT

1. Heard the learned counsel for both the parties

and perused the material on record.

2. It is the submission of learned counsel for the

appellant that an application under Section 311 of Code of

Criminal Procedure was filed on 15.04.2016 and prays the

Trial Court to permit him to examine one more witness as

PW2 considering the list of witnesses. The Trial Court

after considering the application, rejected the application.

Being aggrieved by the same, the complainant had

preferred a revision petition before the Revisional Court,

the Revisional Court granted stay on 25.04.2016. The

said order of stay has been communicated to the Trial

NC: 2023:KHC:36549 CRL.A No. 1063 of 2019

Court. In the said stay order, it was mentioned that, stay

has been granted till next date of hearing.

3. The Trial Court after receiving the stay order,

posted the matter on 30.06.2016. The order of extension

of stay was not communicated thereafter to the Trial Court

even after the matter was listed on several occasions. In

the meantime, the Revisional Court allowed the revision

and permitted the complainant to examine one more

witness on his behalf. Learned counsel submits that, if the

order of dismissal is not restored, greater hardship would

be caused to the complainant and it is also difficult to

execute the order of Revisional Court. Making such

submissions, learned counsel for appellant prays to allow

the appeal.

4. Per contra, Sri. Javeed S., learned Amicus

Curiae vehemently oppose the submission of the learned

counsel for the appellant and submits that the Order of

extension of stay has not been communicated to the Trial

Court and the Trial Court has rightly proceeded with the

NC: 2023:KHC:36549 CRL.A No. 1063 of 2019

case and dismissed the complaint for non-prosecution.

There is no infirmity in the said Order. Therefore, the

appeal requires to be dismissed. Having submitted thus,

prays to dismiss the appeal.

5. Having heard the learned counsel for the

respective parties and also perused the Order sheet of the

Trial Court, it appears that the Order of Stay

communicated to the Trial Court on 28.04.2016. However,

thereafter, the case was posted on several dates i.e.,

30.06.2016, 30.07.2016, 27.08.2016, 01.10.2016,

03.12.2016 and 05.05.2017. On considering the

continuous absence of the complainant/appellant and also

not intimating the Stay Order extended by the Revisional

Court, the Trial Court rightly proceeded with the matter

and dismissed the complaint for default. It appears there

is no infirmity in the said Order. However, the Crl.RP

No.297/2016 was allowed on 27.08.2018 permitted the

complainant/revisional petitioner to proceed with the case

and also permitted him to proceed with the case and

NC: 2023:KHC:36549 CRL.A No. 1063 of 2019

examine one more witness on his behalf by allowing the

application filed under Section 311 of the Code of Criminal

Procedure. It appears that if one more opportunity is given

to them, no hardship would be caused to either of the

parties. Therefore, it is appropriate to allow the appeal by

setting aside the Order passed by the Trial Court by

imposing cost of Rs.2,000/- payable to the learned Amicus

Curiae.

6. In the light of the observations made above, I

proceed to pass the following :

ORDER

(i) Criminal Appeal is allowed.

(ii) The Order dated 05.05.2017 passed by the XXII

Additional Chief Metropolitan Magistrate,

Bengaluru in CC No.16140/2015, is hereby set-

aside.

(iii) The Trial Court is directed to proceed with the

case from the stage where it was stopped.

NC: 2023:KHC:36549 CRL.A No. 1063 of 2019

(iv) The cost imposed is payable to the learned

Amicus Curiae. The learned counsel for the

appellant has paid the said cost to the learned

Amicus Curiae and the Amicus Curiae

acknowledges the same.