Smt Ranjintha N vs Shri M Harsha Prabhanjan Raju
2023 Latest Caselaw 6831 Kant

Citation : 2023 Latest Caselaw 6831 Kant
Judgement Date : 27 September, 2023

Karnataka High Court

Smt Ranjintha N vs Shri M Harsha Prabhanjan Raju on 27 September, 2023

Bench: S Rachaiah

                                        -1-
                                                     NC: 2023:KHC:35245
                                                 CRL.A No. 950 of 2019




                IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                  DATED THIS THE 27TH DAY OF SEPTEMBER, 2023

                                     BEFORE
                      THE HON'BLE MR JUSTICE S RACHAIAH
                      CRIMINAL APPEAL NO.950 OF 2019 (A)



              BETWEEN:

              SMT. RANJINTHA N.,
              AGED ABOUT 34 YEARS,
              D/O. NAGARAJ,
              W/O. RAVIKUMAR,
              RESIDING AT NO.70,
              RATHANA VILASA ROAD,
              BASAVANAGUDI,
              BENGALURU - 560 004.
                                                           ...APPELLANT
              (BY SRI. NIKHIL D. KAMATH, ADVOCATE)

              AND:
Digitally
signed by N
UMA
Location:
              SHRI. M. HARSHA PRABHANJAN RAJU,
HIGH          S/O. LAKSHMINARAYANA RAJU,
COURT OF
KARNATAKA     PROPRIETOR,
              M/S. AUSTINS,
              NO.1568, 1ST FLOOR,
              OUTER RING ROAD SECTOR-1,
              HSR LAYOUT,
              BENGALURU - 560 102.
              ALSO AT
              C/O. S. KAMALA,
              NO.11/1 (OLD NO.231)
              V.P. ROAD, OLD MADHIVALA,
                             -2-
                                       NC: 2023:KHC:35245
                                   CRL.A No. 950 of 2019




NEAR SOMESHWARA TEMPLE,
1ST STAGE, BTM LAYOUT,
BENGALURU - 560 068.

AND ALSO AT:
NO.5-36, CHINTALA VEEDI,
TERU VEEDHI (5-1 TO 5-37/1)
PUNGANURU,
CHITOOR DISTRICT,
ANDHRA PRADESH - 517 247.
                                           ...RESPONDENT
(BY SRI. SAGAR PRASANNA S., ADVOCATE FOR
    SRI. VIJAY SHETTY B., ADVOCATE)

     THIS CRIMINAL APPEAL IS FILED UNDER SECTION
378(4) OF THE CODE OF CRIMINAL PROCEDURE PRAYING TO
SET ASIDE THE IMPUGNED JUDGMENT DATED 27.03.2019,
PASSED BY THE XVI ADDITIONAL CHIEF METROPOLITAN
MAGISTRATE,    AT     BENGALURU   IN   C.C.NO.7687/2017,
ACQUITTING THE RESPONDENTS/ACCUSED FOR THE OFFENCE
P/U/S 138 OF THE N.I ACT.

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

                       JUDGMENT

1. Today, the matter is listed for 'Hearing on I.A.'.

However, with the consent of learned counsel for the

respective parties, the matter is taken up for Final

Disposal.

NC: 2023:KHC:35245 CRL.A No. 950 of 2019

2. Heard Sri. Nikhil D. Kamath, learned counsel for the

appellant and Sri. Sagar Prasanna S., for Sri. Vijay Shetty

B., for the respondent and perused the material on record.

3. It is the submission of learned counsel for the

appellant that, the Trial Court dismissed the complaint for

non-prosecution on 27.03.2019, even not affording an

opportunity to lead evidence. On 05.12.2019, an

application for restoration of the said Order was filed

before the Trial Court, assigning the reason for absence on

previous date of hearing. However, the said application

has been rejected on the ground that, the Trial Court is

having no power to review its own Order. The reasons

assigned in the said application was that, the complainant

was suffering from neurological problem and the Doctor

had advised her to take bed rest, due to which, she could

not appear before the Trial Court on the day when it was

listed for 'Cross-examination of PW1'. Now the learned

counsel for the appellant undertakes to keep the

complainant for Cross-examination.

NC: 2023:KHC:35245 CRL.A No. 950 of 2019

4. Per contra, the learned counsel for the respondent

vehemently opposed to allow the appeal and giving the

opportunity to the complainant/PW1 submitting that,

sufficient opportunity was given to them by the Trial Court

to make available for cross-examination, however, PW1

did not appear before the Trial Court or not available for

Cross-examination. Therefore, the Trial Court

appropriately dismissed the complaint. It is further

submitted that, allowing the appeal certainly would defeat

the interest of the respondent, hence, the same required

to be dismissed. Making such submissions, learned

counsel for the respondent prays to dismiss the appeal.

5. Having heard the learned counsel for the respective

parties and also the grounds urged in the appeal memo, at

paragraph Nos.17 and 18, which read thus:

"17. That the Appellant's Counsel appearing before the Learned Trial Court had not advised the Appellant to appear on 27th March, 2019 to tender for cross-examination. Moreover, the Appellant was suffering from neurological problem and was advised

NC: 2023:KHC:35245 CRL.A No. 950 of 2019

bed rest by her doctor. However, in case, the Appellant's Counsel had instructed to appear on 27th March, 2019, the Appellant would have personally kept her presence before the Learned Trial Court appeared and tendered herself for cross- examination.

18. That due to non-appearance of the Appellant's Counsel before the Learned Trial Court on 27th March, 2019, the Learned Trial Court dismissed the complaint in C.C No.7687/2017 and due to which the Appellant is unnecessarily put into hardship and inconvenience."

6. On careful reading of the findings of the order dated

5.4.2019 passed by the Trial Court, it is appropriate to

provide one more opportunity to PW1 to make available

for cross-examination by imposing cost of Rs.2,000/-

payable to the respondent. Accordingly, I proceed to pass

the following :