Karnataka High Court
M/S Harini Ceramics vs M/S Ozone Infrastructure on 16 January, 2024
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CRL.A No. 276 of 2022
NC: 2024:KHC:1838
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MS JUSTICE J.M.KHAZI
CRIMINAL APPEAL NO.276 OF 2022
BETWEEN:
M/S HARINI CERAMICS
REPRESENTED BY ITS PRPRIETOR
ANANDAKUMAR
S/O LATE RANGAIAH
AGED ABOUT 37 YEARS
OFFICE AT NO.63
CHIKKAGOLLARAHATTI
MAGADI MAIN ROAD
MACHOHALLI CROSS
BENGALURU - 560 091
...APPELLANT
(BY SRI. MANJUNATH M R, ADVOCATE)
AND:
M/S OZONE INFRASTRUCTURE
REPRESENTED BY ITS MANAGER
ZUBAIR AHAMED
Digitally signed
by REKHA R S/O NISAR AHMMED M
Location: High AGED ABOUT 42 YEARS
Court of KALKUNI CIRCLE, BYPASS ROAD, HUNSUR
Karnataka
MYSORE DISTRICT - 571 105
ALSO AT
ZUBAIR AHAMED
S/O NISAR AHMMED M
AGED ABOUT 42 YEARS
R/AT NO.257, 9TH CROSS,
SHANTHINAGAR, MAHADEVAPURA ROAD
MYSORE - 570 019
...RESPONDENT
(RESPONDENT - SERVED)
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CRL.A No. 276 of 2022
NC: 2024:KHC:1838
THIS CRL.A IS FILED UNDER SECTION 378(4) OF CR.P.C
PRAYING TO a) SET ASIDE THE IMPUGNED ORDER PASSED BY
THE LEARNED XXXVI ADDITIONAL CHIEF METROPOLITAN
MAGISTRATE AT BENGALURU DATED 27.11.2021 PASSED IN
C.C.NO.443/2020 AND REMAND THE ABOVE CASE BEFORE
TRIAL COURT; b) FURTHER PASS SUCH OTHER JUDGMENT,
ORDER OR DIRECTIONS AS THIS HON'BLE COURT DEEM IT FIT
AND PROPER IN THE FACTS AND CIRCUMSTANCES OF THE
CASE IN THE ENDS OF JUSTICE AND EQUITY.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Challenging the dismissal of the complaint filed by
him against respondent/accused for the offence punishable
under Section 138 of N.I.Act, complainant has filed this
appeal.
2. It is the case of the complainant that he is
Proprietor of M/s Harini Ceramix. On 28.11.2018, at the
request of accused, complainant has supplied 1493 boxes
of vitrified tiles total worth Rs.10,52,744.16 ps. On the
same day accused requested for supply of additional
material worth Rs.2,47,465/- excluding the balance of
Rs.4,99,962/- due from him. Accordingly, complainant has
supplied platinum white plus vitrified tiles for
Rs.7,47,457/- and including the GST, accused is liable to
NC: 2024:KHC:1838
pay Rs.8,81,964/-. Initially accused issued cheque dated
10.12.2018 for Rs.17,47,200/-. When presented it was
returned with an endorsement "drawers signature differs".
Thereafter, accused issued one more cheque for
Rs.3,76,896/- dated 20.12.2018. It was also dishonoured
for "funds insufficient". When complainant brought this
fact to the notice of accused, he issued a fresh cheque for
Rs.21,24,096/- dated 02.01.2019. It also came to be
dishonoured on the ground of "insufficient funds".
3. In this regard complainant has filed a complaint
in Cr.No.19/2019 for the offences punishable under
Sections 406 and 420 I.P.C. During the third week of
January 2019, accused approached the complainant and
requested to represent the cheque and that he would
arrange funds. Believing the words of accused, on
01.03.2019, when complainant represented the cheque,
once again it was dishonoured for "funds insufficient" and
hence the complaint.
NC: 2024:KHC:1838
4. The trial Court took cognizance and registered
the case against the accused and issued summons against
him. Since accused failed to appear, non-bailable warrant
was issued against him. During the COVID-19 period, the
case was adjourned from time to time. However, on
27.11.2021, the trial Court dismissed the complaint on the
ground that the complainant has failed to take steps and
he is not interested in prosecuting the case. Challenging
the same, the complainant is before this Court, contending
that he was diligently prosecuting the complaint. However,
on account of COVID-19 the case was adjourned from time
to time and as such steps could not be taken and without
providing reasonable opportunity, the complaint was
dismissed.
5. Heard arguments and perused the record.
6. From the material placed on record, particularly
the order sheet, it is evident that initially the matter was
pending before Rural Court, Bengaluru and on the point of
jurisdiction, it was transferred to the Court of XII ACMM,
Bengaluru. After the receipt of the file, summons was
NC: 2024:KHC:1838
issued against the accused. On 26.02.2020, after the
RPAD returned with endorsement "No such person", the
trial Court has issued Non-bailable warrant against the
accused. Thereafter, few adjournments were granted on
account of COVID-19 as well as Presiding Officer on leave.
Thereafter, on 20.09.2021, 05.10.2021 and 13.10.2021
the complainant and his counsel have remained absent.
On 27.11.2021, the trial Court has dismissed the
complaint for non-prosecution.
7. The amount due under the cheque is
Rs.21,24,096/-. The sworn statement given by the
complainant also disclose the fact that the accused has not
claimed legal notice. Before this Court also, though duly
served with notice, respondent/accused has remained
absent. It appears before the trial Court, the accused has
intentionally evaded the process of the Court. Taking into
consideration the amount due under the cheque and
conduct of the accused, this Court is of the considered
opinion that one more opportunity be given to the
NC: 2024:KHC:1838
complainant to prosecute the complaint and accordingly,
the following:
ORDER
(i) Appeal is allowed.
(ii) The impugned order dated 27.11.2021 is set
aside.
(ii) The complaint is restored to the file.
(iv) The complainant is directed to appear before
the trial Court on 08.02.2024 without waiting
for further notice from the trial Court.
(v) The learned counsel for complainant is directed
to take steps against the accused and co-
operate with the trial Court to secure his
presence and prosecute the complaint, without
seeking unnecessary adjournments.
Sd/-
JUDGE
RR
