Karnataka High Court
Sri S Shivarajaiah vs Sri Doreswamy on 16 April, 2024
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CRL.A No. 902 of 2015
NC: 2024:KHC:15124
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF APRIL, 2024
BEFORE
THE HON'BLE MS JUSTICE J.M.KHAZI
CRIMINAL APPEAL NO.902 OF 2015
BETWEEN:
SRI S SHIVARAJAIAH
S/O SAMBAPPA,
AGED ABOUT 54 YEARS,
R/AT NO.23/2, 2ND FLOOR,
DHARANENDHRA NILAYA,
4TH MAIN ROAD, 16TH CROSS,
GANESH STREET, BENGALURU.
...APPELLANT
(BY SRI. ANNAIAH C V, ADVOCATE)
AND:
SRI DORESWAMY
S/O BORE GOWDA,
R/AT ANNTHANAHALLI VILLAGE,
GOWDA GERE POST KASABA HOBLI,
CHANNARAYAPATNA TALUK,
Digitally signed
by REKHA R HASSAN DISTRICT,
Location: High ALSO AT NO.8, PRAVEEN KUMAR BLDG.,
Court of DEVARACHIKKANAHALLI,
Karnataka BENGALURU - 560 068.
...RESPONDENT
(BY SRI. PRAMOD M, ADVOCATE)
THIS CRL.A IS FILED UNDER SECTION 378(4) OF CR.P.C
PRAYING TO SET ASIDE THE ORDER DATED 12.06.2015
PASSED BY THE LEARNED XXII ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE AT BENGALURU IN
C.C.NO.12709/2015 AND RESTORE THE ABOVE CASE AND
PERMIT THE APPELLANT TO PROCEED WITH THE AFORESAID
CASE, IN THE COURT BELOW, IN THE INTERESTS OF JUSTICE
AND EQUITY.
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CRL.A No. 902 of 2015
NC: 2024:KHC:15124
THIS APPEAL, COMING ON FOR HEARING, 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"), for default of paying PF, 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 and
accused are friends. On 26.02.2015, accused borrowed
hand loan of Rs.64,000/- from the complainant promising
to repay the same by the first week of March 2015. On his
failure and on the demand made by the complainant,
accused issued cheque dated 15.03.2015 for Rs.64,000/-.
However, when presented for realization, it was
NC: 2024:KHC:15124
dishonoured for want of sufficient funds. After issuing legal
notice and on failure of complainant to repay the amount
due, complaint is filed.
4. The complaint was filed on 08.05.2015. It was
posted to 15.05.2015 for sworn statement. In fact on that
day sworn statement of the complainant was recorded and
the trial Court ordered for issue of summons returnable by
12.06.2015.
5. On 12.06.2015, on the ground that PF is not
paid, the trial Court has dismissed the complaint. No
reasonable opportunity was given to the complainant to
take steps and in a hurried manner, the trial Court has
proceeded to dismiss the complaint and hence the appeal.
6. After due service of notice respondent/accused
has appeared through counsel.
7. Heard arguments and perused the record.
8. Thus, complainant prosecuted the accused on
the allegations that the cheque issued by him towards
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repayment of hand loan of Rs.64,000/- came to be
dishonoured for funds insufficient and without giving any
opportunity on the very next day of ordering for
registering of case, the trial Court has dismissed the
complaint for non payment of PF.
9. As evident from the order sheet, the complaint
was filed on 08.05.2015, sworn statement was recorded
on 15.05.2015 and summons was ordered to be issued to
the accused returnable by 12.06.2015. Since the
complainant has not paid PF, the concerned clerk has not
issued the summons. On that day, the trial Court has
chosen to dismiss the very complaint. Prima facie it is
evident that no reasonable opportunity was given to the
complainant to prosecute the complaint.
10. One more unfortunate aspect is that the
present appeal is filed in 2015. On 21.08.2015, notice was
ordered. It was listed on 30.09.2015. On that day, at the
request of learned counsel for appellant/complainant, a
week's time was granted. In fact order sheet reveal that
NC: 2024:KHC:15124
notice is duly served on the respondent/accused.
Thereafter, it was listed on 09.04.2018 i.e., after lapse of
2 1/2 years. On that day, special leave was granted and it
was ordered to be listed for admission. On 29.05.2018, it
is admitted. Thereafter it was ordered to be posted before
Court on 23.01.2024, 14.02.2024 and 19.03.2024. Since
the respondent failed to appear, on 19.03.2024, bailable
warrant was issued against him returnable by 16.04.2024.
It is duly executed and he has appeared through counsel.
11. Since the complaint was dismissed for non-
prosecution and it is a case for remand, the learned
counsel for complainant/appellant ought to have brought
this fact to the notice of this Court and sought remand
instead of unnecessarily waiting all these 9 years.
12. Anyhow, fact remains that the complaint came
to be dismissed without providing any opportunity to the
complainant to pay the PF. Consequently, the complainant
could not get an opportunity to prove his case. It is a fit
case for remand to the trial Court to provide reasonable
NC: 2024:KHC:15124
opportunity to both parties and decide the case on merit
and accordingly the following:
ORDER
(i) Appeal is allowed.
(ii) The impugned order dated 12.06.2015
passed in C.C.No.12709/2015 on the file of
XXII ACMM, Bengaluru is set aside.
(ii) The complainant and respondent/accused
are directed to appear before the trial
Court on 06.05.2024 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 06.05.2024,
respondent/accused fails to appear before
the Court, the trial Court is at liberty to
take coercive steps against him for
securing his presence.
Sd/-
JUDGE
RR
