Karnataka High Court
Sri. R Kumar vs Kellar Trading Company on 8 April, 2024
-1-
CRL.A No. 1264 of 2023
NC: 2024:KHC:14369
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF APRIL, 2024
BEFORE
THE HON'BLE MS JUSTICE J.M.KHAZI
CRIMINAL APPEAL NO.1264 OF 2023
BETWEEN:
SRI. R KUMAR
PROPRIETOR,
AGED ABOUT 42 YEARS,
SREE ESHWARI ARECANUT TRADERS,
ARECA NUT MERCHANTS,
A/A-7, APMC YARD,
SHIVAMOGGA - 577 204.
...APPELLANT
(BY SRI. SACHIN B S, ADVOCATE)
AND:
1. KELLAR TRADING COMPANY
KELLAR VILLAGE,
KIGGA POST, SRINGERI TALUK,
CHICKMAGALURU DISTRICT,
AND ALSO AT PMC YARD,
Digitally
signed by SAGAR ROAD,
REKHA R SHIVAMOGGA - 577 204
Location: High REP BY ITS PARTNER.
Court of
Karnataka
2. SRI H C SUBRAYA NAIK
S/O LATE CHINNE NAIK,
AGED ABOUT 76 YEARS,
PARTNER, KELLAR TRADING COMPANY
KELLAR VILLAGE, KIGGA POST,
SRINGERI TALUK, CHICKMAGALURU DITRICT,
AND ALSO AT APMC YARD,
SAGAR ROAD, SHIVAMOGGA-577204.
3. SRI H S RAGAVENDRA
S/O H C SUBRAYA NAIK
-2-
CRL.A No. 1264 of 2023
NC: 2024:KHC:14369
AGED ABOUT 46 YEARS,
PARTNER, KELLAR TRADING COMPANY
KELLAR VILLAGE, KIGGA POST,
SRINGERI TALUK, CHICKMAGALURU DITRICT,
AND ALSO AT APMC YARD, SAGAR ROAD,
SHIVAMOGGA - 577 204.
...RESPONDENTS
(BY SRI. NARAYAN M NAYAK, ADVOCATE FOR R2;
R1 - SERVED)
THIS CRL.A IS FILED UNDER SECTION 378(4) OF CR.P.C
PRAYING TO a) SET ASIDE THE IMPUGNED ORDER DATED
17.11.2022 IN C.C.NO.2059 OF 2021 ON THE FILE OF II
ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, SHIVAMOGGA,
AS PER DOCUMENT NO.1.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
Being aggrieved by the dismissal of the complaint
filed by him under Section 200 Cr.P.C against the
respondent/accused for the offence punishable under
Section 138 of Negotiable Instrument (for short "N.I.
Act"), appellant who is complainant has filed this appeal
under Section 378(4) of Cr.P.C.
2. For the sake of convenience, the parties are
referred to by their rank before the trial Court.
3. It is the case of the complainant that he is a
licensed Areca Nut Trader in APMC Yard, Shivamogga.
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Accused No.1 is a partnership firm carrying on the
business of Areca Nut. Accused Nos.2 and 3 are its
partners. Accused used to purchase Areca Nut from the
complainant on credit basis. In respect of credit purchase
of Areca Nut, accused No.3 has issued cheque for Rs.30
lakhs towards part payment and requested to present it on
20.08.2019. However, when it was presented for
realization, it was dishonoured on account of stop payment
instructions. When it was brought to the notice of accused
Nos.2 and 3, they regretted the same and requested the
complainant to re-present it. However, once again it was
dishonoured on account of stop payment instructions.
Hence, complainant got issued legal notice and when
accused failed to comply with the same, complaint is filed.
4. After recording sworn statement, cognizance is
taken and case was registered.
5. Initially, the case was pending before the Court
of JMFC-III Shivamogga and later, it was transferred to
the Court of Prl.Senior Civil Judge and CJM, Shivamogga.
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Though duly served with summons, intentionally accused
No.3 failed to appear. Accused Nos.1 and 2 have purposely
evaded service of summons. Despite taking steps several
times, the presence of accused could not be secured. On
17.11.2022, the trial Court has dismissed the complaint
for default of not taking steps. On account of ill health of
the counsel for complainant, steps could not be taken.
Complainant is having good case on merits and he may be
given one more opportunity to prosecute the complaint
and hence, the appeal.
6. After due service of notice, respondent No.2 has
appeared through counsel. Respondent No.1 is the firm
represented by respondent No.2. Notice sent to
respondent No.3 is returned with endorsement "not found
in the given address". It is brought to the notice of the
Court that respondent No.3 is the son of respondent No.2
and they are partners of respondent No.1/firm. In the light
of the above facts, notice to respondent No.3 is dispensed
with.
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7. Heard arguments and perused the record.
8. Thus, complainant prosecuted the accused on
the allegations that cheque for Rs.30 lakhs was issued
towards part payment of the amount due with regard to
the Areca Nut transaction and when presented, it was
dishonoured on the ground of stop payment instructions.
The trial Court has dismissed the complaint on the ground
that the complainant has failed to take steps against the
accused. Admittedly, accused No.1 is a partnership firm
and accused Nos.2 and 3 are its partners. They are Areca
Nut Traders doing business in the said address. Such
being the case, it appears they have successfully evaded
the service of summons. Though accused No.3 is duly
served and Non bailable warrant is issued several times,
he has also successfully evaded the warrant. The amount
involved is Rs.30 lakhs. In the above facts and
circumstances, this Court is of the considered opinion that
complainant is entitled for reasonable opportunity to
secure the presence of accused and prove his case. It
would not cause any prejudice to the accused as he would
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get an opportunity to defend himself and accordingly, the
following:
ORDER
(i) Appeal is allowed.
(ii) The impugned order dated 17.11.2022 passed
in C.C.No.2059/2021 on the file of II
Addl.Senior Civil Judge & JMFC, Shivamogga, is
set aside.
(ii) The complainant and respondents/accused
Nos.1 to 3 are directed to appear before the
trial Court on 22.04.2024 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 22.04.2024,
respondents/accused Nos.1 to 3 fail to appear
before the Court, the trial Court is at liberty to
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take coercive steps against them for securing
their presence.
Sd/-
JUDGE
RR
