Ms Mahadevi vs H M Thukaram
2024 Latest Caselaw 3990 Kant

Citation : 2024 Latest Caselaw 3990 Kant
Judgement Date : 9 February, 2024

Karnataka High Court

Ms Mahadevi vs H M Thukaram on 9 February, 2024

                                              -1-
                                                      CRL.A No. 299 of 2023
                                                          NC: 2024:KHC:5545




                   IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                      DATED THIS THE 9TH DAY OF FEBRUARY, 2024

                                           BEFORE
                           THE HON'BLE MS JUSTICE J.M.KHAZI
                            CRIMINAL APPEAL NO.299 OF 2023
                   BETWEEN:

                       MS MAHADEVI
                       W/O LATE KRINISHEGOWDA,
                       AGED ABOUT 50 YEARS,
                       R/AT SANTE BEEDI,
                       KERALAPURA VILLAGE,
                       RAMANTHAPURA HOBLI,
                       ARAKALAGUD TALUK,
                       HASSAN DISTRICT - 573 133
                                                               ...APPELLANT
                   (BY SRI. LETHIF B, ADVOCATE)

                   AND:

                       H M THUKARAM
                       BIN LATE DODDAGUDI GOWDA,
                       AGED ABOUT 55 YEARS,
                       R/AT HEBBURU VILLAGE,
Digitally signed       SALIGRAMA HOBLI,
by REKHA R             K R NAGARA TALUK,
Location: High
Court of               MYSURU DISTRICT - 571 604
Karnataka                                                    ...RESPONDENT
                   (RESPONDENT - SERVED)

                        THIS CRL.A. IS FILED UNDER SECTION 378(4) OF CR.P.C
                   PRAYING TO SET ASIDE THE ORDER DATED 01.04.2022 ON
                   THE FILE OF THE ADDITIONAL CIVIL JUDGE AND JMFC,
                   ARAKALAGUDU, HASSAN IN C.C.NO.735/2019 FOR THE
                   OFFENCE PUNISHABLE UNDER SECTION 138 OF N.I ACT IN
                   THE INTERESTS OF JUSTICE AND EQUITY.

                       THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE
                   COURT DELIVERED THE FOLLOWING:
                              -2-
                                       CRL.A No. 299 of 2023
                                           NC: 2024:KHC:5545




                        JUDGMENT

Being aggrieved by the dismissal of the complaint for

non-prosecution 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 she and

accused are known to each other and to meet his financial

necessity, accused availed hand loan of Rs.3 lakhs from

the complainant and promising to repay within one month.

However, he failed to repay the same and on request and

demand by the complainant, issued a cheque dated

30.08.2019. However, when presented the cheque, it was

dishonoured with endorsement "Funds insufficient". After

issuing legal notice and on failure of accused to pay the

amount due under cheque, complaint is filed.

NC: 2024:KHC:5545

4. The accused appeared before the trial Court

and contested the matter by pleading not guilty.

5. Complainant examined herself as PW-1 and

when the case was posted for her cross-examination, on

01.04.2022, the trial Court dismissed the complaint by

discarding the evidence of PW-1 on the ground that

despite granting sufficient time, complainant has failed to

tender for cross-examination. Challenging the same,

complainant has filed this appeal, contending that on

01.04.2022, the complainant was unable to appear before

the Court due to COVID-19 restrictions. She is having a

good case on merit and pray to allow the appeal, set aside

the impugned order, convict the accused and sentence him

appropriately.

6. After due service of notice respondent/accused

has appeared through counsel.

7. Heard and perused the record.

8. Thus, on 01.04.2022, the trial Court has

dismissed the complaint after discarding the examination-

NC: 2024:KHC:5545

in-chief of complainant on the ground that despite

granting sufficient time, she is not diligent in prosecuting

the complaint. The complainant has claimed that on

01.04.2022, she could not present before the Court on

account of COVID-19 restrictions. The order sheet reveal

that on 08.02.2021, accused appeared through counsel

and on that day his personal appearance was dispensed

with. On 10.03.2021, he has secured bail and filed

application under Section 145 (2) of N.I. Act. His plea was

recorded. On 14.08.2021, the case was referred to Lok

Adalath. However, it was not settled and sent back to the

trial Court. Thereafter, case was posted for cross-

examination of PW-1. Eight (8) adjournments have been

granted by the trial Court to enable the complainant to

tender herself for cross-examination and ultimately on

01.04.2022, for non appearance of complainant, the trial

Court has discarded her examination-in-chief and

dismissed the complaint for non-prosecution. According to

the complainant, she could not appear on account of

COVID-19 restrictions, which fact is not disputed by the

NC: 2024:KHC:5545

respondent. Having regard to the same and also the fact

that the cheque amount involved is Rs.3 lakhs, this Court

is of the considered opinion, the matter requires remand

to the trial Court for disposal on merit after providing

reasonable opportunity to both parties and accordingly the

following:

ORDER

(i) Appeal is allowed.

(ii) The impugned order dated 01.04.2022

passed in C.C.No.735/2019 on the file of

Addl.Civil Judge & JMFC., Arkalgud is set

aside.

(ii) The complainant and respondent/accused

are directed to appear before the trial

Court on 27.02.2024 without waiting for

further notice from the trial Court.