Karnataka High Court
Sri Mohammed Mansur Pasha vs M. Narayanaswamy on 10 April, 2024
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CRL.A No. 1473 of 2023
NC: 2024:KHC:14625
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF APRIL, 2024
BEFORE
THE HON'BLE MS JUSTICE J.M.KHAZI
CRIMINAL APPEAL NO.1473 OF 2023
BETWEEN:
SRI MOHAMMED MANSUR PASHA
S/O ARIF PASHA
AGED ABOUT 41 YEARS
R/A NO.664, 11TH CROSS
6TH C MAIN, JP NAGAR III PHASE
BENGALURU - 560 078
...APPELLANT
(BY SMT. VISHALI SRI LAXMI P, ADVOCATE FOR
SMT. ANUPARNA BORDOLOI, ADVOCATE)
AND:
M. NARAYANASWAMY
S/O MUNIYAPPA
AGED MAJOR
R/A CHIKKANAYAKANAHALLI
TEKAL HOBLI, MALUR TLAUK
Digitally
signed by KOLAR DISTRICT - 563 137
REKHA R ...RESPONDENT
Location: (BY SRI. GOPALAKRISHNA GOWDA I, ADVOCATE - ABSENT)
High Court of
Karnataka THIS CRL.A IS FILED UNDER SECTION 378(4) CR.P.C
PRAYING TO a) ALLOW THIS APPEAL BY SETTING ASIDE THE
IMPUGNED ORDER DATED 06.02.2023 PASSED IN
C.C.NO.11028/2021 PASSED BY THE XII ADDITIONAL SMALL
CAUSE JUDGE & ACMM AND PERMIT THE APPELLANT TO PROVE
HIS CASE ON MERITS, IN THE INTEREST OF JUSTICE; b)
GRANT SUCH OTHER RELIEF THAT THIS HON'BLE COURT MAY
DEEM FIT IN THE FACTS AND CIRCUMSTANCES OF THE CASE.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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CRL.A No. 1473 of 2023
NC: 2024:KHC:14625
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. As evident from the facts enumerated in the
memorandum of appeal, complainant was the owner of
TATA tipper lorry No.KA01-AD/3431. Due to financial
crisis, he offer to sell the same for Rs.11,70,000/-.
Accused agreed to purchase it and executed agreement of
sale dated 02.11.2019. As the said vehicle was under
finance of Manappuram Finance Ltd for a tune of
Rs.6,70,000/-, accused undertook to clear the same and
towards balance of Rs.5,00,000/- issued cheque dated
09.12.2019. When presented for realization, it was
dishonoured as insufficient funds vide endorsement dated
NC: 2024:KHC:14625
10.12.2019. In this regard complainant got issued legal
notice, but accused refused to receive the same and
hence, the complaint.
4. After recording the sworn statement, the trial
Court took cognizance. In fact accused was duly served
with summons. Though initially he failed to appear, later
he has appeared through counsel and secured bail. He
pleaded not guilty and the case was posted for cross-
examination of PW-1. On 06.02.2023, the complainant
was not able to appear before the trial Court as he was
engaged in an emergent situation coupled with ill health.
In the above circumstances, one more opportunity be
given to the complainant to prove his case. With great
difficulty, he has secured the presence of accused. If the
complaint is not restored, complainant would be put to
great hardship. He is having a good case on merit and
hence, the appeal.
5. After due service of notice, respondent/accused
has appeared through counsel.
NC: 2024:KHC:14625
6. Heard arguments and perused the record.
7. Thus, complainant prosecuted the accused on
the allegations that accused offered to purchase the TATA
tipper lorry belonging to complainant for a sum of
Rs.11,70,000/-, out of which Rs.6,70,000/- was the loan
payable to Manappuram Finance Ltd and for the balance of
Rs.5,00,000/-, he issued the cheque. When presented, it
was dishonoured for funds insufficient and despite due
service of legal notice, accused failed to repay the same.
However, the trial Court dismissed the complaint on
06.02.2023, on the ground that complainant is not
interested in prosecuting the complaint, as he has failed to
tender himself for cross-examination, despite granting
sufficient opportunities.
8. The order sheet reveal that from 28.02.2020 till
11.11.2021, number of adjournments were granted to the
complainant for recording sworn statement, including for
the reason of COVID-19 Pandemic and SOP in operation.
Ultimately, on 03.12.2021, sworn statement of
complainant was recorded and cognizance is taken.
NC: 2024:KHC:14625
Though duly served with summons, the accused remained
absent and coercive steps have been taken against him.
On 07.04.2022, accused has appeared and secured bail.
Thereafter, the case is posted for cross-examination of
PW-1 to 29.06.2022. On that day, complainant remained
absent. Thereafter, 5 adjournments have been granted,
including on the ground that Presiding Officer is
transferred. On 06.02.2023, the learned counsel for
complainant filed application seeking exemption on the
ground of ill health of complainant. The trial Court has
rejected the same, on the ground that medical certificate
is not produced. Despite the fact that sufficient and
reasonable opportunities were given to the complainant,
this Court is of the considered opinion that one more
opportunity be given to the complainant to prove his case.
No prejudice would be caused to the accused as he would
get an opportunity to defend himself and accordingly, the
following:
ORDER
(i) Appeal is allowed.
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(ii) The impugned order dated 06.02.2023
passed in C.C.No.11028/2021 on the file of
XII Addl. Small Causes Judge and ACMM,
Bengaluru, is set aside.
(ii) The complainant and accused are directed
to appear before the trial Court on
24.04.2024 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 24.04.2024,
respondent/accused fails to appear before
the Court, the trial Court is at liberty to
take coercive steps against them for
securing their presence.
Sd/-
JUDGE
RR
