Karnataka High Court
Chikka Durgaiah vs A Shekar on 22 April, 2024
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CRL.A No. 1636 of 2023
NC: 2024:KHC:15794
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF APRIL, 2024
BEFORE
THE HON'BLE MS JUSTICE J.M.KHAZI
CRIMINAL APPEAL NO.1636 OF 2023
BETWEEN:
CHIKKA DURGAIAH
S/O (LATE) DURGAIAH
AGED ABOUT 67 YEARS
RESIDING AT NO.166, MARUTHI NAGAR
ITTAMADU MAIN ROAD
BANASHANKARI 3RD STAGE
BENGALURU - 560 085
...APPELLANT
(BY SRI. V.B.RAVISHANKAR, ADVOCATE)
AND:
A SHEKAR
S/O ANAND
AGED ABOUT 36 YEARS
RESIDING AT NO.47
KRUSHI NILAYA, 2ND FLOOR
Digitally signed
by REKHA R K SHIVARAMA KARANTHA NAGAR ROAD
Location: High GOKUL RESIDENCY LAYOUT
Court of GANAPATHI HALLI, CHUCHGUPPE POST
Karnataka THAVAREKERE
BENGALURU - 562 130
...RESPONDENT
THIS CRL.A IS FILED UNDER SECTION 378(4) OF CR.P.C.
PRAYING TO SET ASIDE THE ORDER DATED 30.05.2023
PASSED BY THE XVI ADDITIONAL CHIEF METROPOLITAN
MAGISTRATE, BENGALURU IN PCR.NO.15756/2022, IN THE
INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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CRL.A No. 1636 of 2023
NC: 2024:KHC:15794
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 and
accused are known to each other. In the light of the said
acquaintance, complainant has lent a sum of Rs.5 lakhs to
the accused and towards repayment of the same, accused
issued cheque dated 15.06.2022. On presentation, it was
dishonoured with endorsement "Account is frozen".
Though legal notice is duly served on the accused he has
neither paid the amount due nor sent the reply and hence
the complaint.
NC: 2024:KHC:15794
4. On presentation of the complaint, the trial Court
took cognizance and posted the case for sworn statement.
In the meanwhile, complainant has undergone knee
replacement surgery and was confined to bed for nearly
six months. On account of the same, he was not able to
appear before the trial Court to give his sworn statement.
On 30.05.2023, the trial Court has dismissed the
complaint for non-prosecution. His absence was not
intentional. If the complaint is not restored, complainant
would be put to irreparable loss and injury and hence, the
appeal.
5. Since the complaint was dismissed before the
recording of sworn statement and appearance of accused,
in the present appeal notice to respondent/accused is
dispensed with.
6. Heard arguments and perused the record.
7. Thus, complainant prosecuted the accused on
the allegations that he borrowed hand loan of Rs.5 lakhs
and the cheque issued by him towards repayment of the
NC: 2024:KHC:15794
same came to be dishonoured on the ground that the
Account is frozen and despite due service of legal notice,
accused failed to repay the same. However, the trial Court
dismissed the complaint on 30.05.2023, on the ground
that complainant is not interested in prosecuting the
complaint, as he failed to record his sworn statement
despite granting several adjournments.
8. The order sheet reveal that 5 adjournments
were granted to the complainant for recording his sworn
statement. On all the dates of hearing both complainant
and his counsel remained absent and ultimately, on
30.05.2023, the trial Court dismissed the complaint for
non-prosecution. The reasons assigned by the complainant
for his non appearance is that he had undergone knee
replacement surgery. To evidence this fact he has
produced discharge summary issued by Mediscope
Hospital Private Limited, Bengaluru. As per this document
he was admitted to the hospital on 14.11.2022 and
discharge on 20.11.2022. He has undergone a
NC: 2024:KHC:15794
Quadropsplasty of the right leg for apparent
augmentation. It appears on account of the operation in
question, he was confined to bed and therefore, he was
unable to present before the Court. Taking into
consideration the age of the complainant, the fact that he
has undergone operation for knee replacement, this Court
is of the considered opinion that complainant is entitled for
reasonable opportunity to prove his case. It would not
cause any prejudice to the accused as he would get an
opportunity to defend himself and accordingly, the
following:
ORDER
(i) Appeal is allowed.
(ii) The impugned order dated 30.05.2023
passed in PCR.No.15756/2022 on the file of
XVI ACMM, Bengaluru is set aside.
(ii) The complainant is directed to appear
before the trial Court on 13.05.2024
NC: 2024:KHC:15794
without waiting for further notice from the
trial Court.
(iii) The trial Court is directed to secure the
presence of accused and decide the case in
accordance with law, after providing
reasonable opportunity to both parties.
Sd/-
JUDGE
RR
