Karnataka High Court
Sri. Shah Rajesh vs Sri. Neeraj Kumar Agarwal on 5 June, 2024
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
-1-
NC: 2024:KHC:19507
CRL.A No. 1867 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL APPEAL No. 1867 OF 2019
BETWEEN:
SRI. SHAH RAJESH
S/O LATE SHAH SAJJAN RAJ
AGED ABOUT 61 YEARS
PROPRIETOR
SHOWOFF CLOTHING CO.,
No.452, 22ND CROSS
2ND FLOOR, 3RD BLOCK
JAYANAGAR, BENGALURU - 560 011.
Digitally signed by ...APPELLANT
LAKSHMINARAYANA
MURTHY RAJASHRI
Location: HIGH (BY SRI R OMKUMAR, ADVOCATE)
COURT OF
KARNATAKA
AND:
SRI NEERAJ KUMAR AGARWAL
S/O JAGADISH AGARWAL
M/s SHOWOFF
HIS AND HER HIGH FASHION BOUTIZUE
No.1-8-135/1 B 216
VAISHNAV MANSION
SHOP No.1, P . G ROAD
SECUNDERABAD - 500 003.
...RESPONDENT
(BY SRI MANU N P, ADVOCATE FOR
SRI SRINIVAS R, ADVOCATE)
THIS CRL.A. IS FILED U/S.378(4) CR.P.C PRAYING TO
SET ASIDE THE ORDER OF ACQUITTAL DATED 19.08.2019
PASSED BY THE XXIII ADDITIONAL CHIEF METROPOLITAN
MAGISTRATE, BENGALURU IN P.C.R.No.10913/2009-
-2-
NC: 2024:KHC:19507
CRL.A No. 1867 of 2019
ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE
P/U/S 138 OF N.I. ACT.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. This appeal is filed by the appellant -
complainant praying to set aside the order dated
19.08.2019 passed in PCR No. 10913/2009 by XXIII
Additional Chief Metropolitan Magistrate, Bengaluru. Under
the said order the application filed by the appellant -
complainant under Section 142(b) of the Negotiable
Instruments Act (hereinafter referred to as the `N.I. Act')
seeking condonation of delay came to be dismissed and
consequently, the complaint has been dismissed as it is
not filed within the stipulated period prescribed under
Section 138 of N.I. Act.
2. Heard the learned counsel for the appellant -
complainant on admission.
3. The appellant was the complainant and
respondent was the accused. The appellant - complainant
initiated proceedings against the respondent for offence
NC: 2024:KHC:19507
under Section 138 of N.I. Act in PCR No. 10913/2009.
Along with the said complaint, the appellant - complainant
had filed an application under Section 142 of N.I. Act
seeking condonation of delay of 16 days in filing the
complaint. The appellant - complainant is examined as
P.W.1 in support of his application seeking condonation of
delay. No documents are produced. P.W.1 has not been
cross-examined by the learned counsel for the respondent
- accused. The learned Magistrate, by his order dated
19.08.2019 has rejected the said application filed by the
appellant - complainant seeking codonation of delay.
4. Learned counsel for appellant - complainant
would contend that the appellant - complainant was not
well, he was suffering from viral fever and therefore he
was not able to file the complaint in time. He further
argued that the complainant has a prima facie case to
proceed against the respondent - accused for offence
under Section 138 of N.I. Act. The appellant complainant
could not produce the medical certificate as he had given it
to his earlier counsel and the same has been stated by
NC: 2024:KHC:19507
P.W.1 in his further chief examination. As there is no
cross-examination of P.W.1 reasons put fourth by P.W.1
remained unchallenged. Without considering these aspects
the learned Magistrate has erred in passing the impugned
order.
5. Having heard the learned counsel for the
appellant - complainant this Court has perused the
impugned order and records.
6. The appellant - complainant presented the
cheque said to have been issued by the respondent -
accused to him and it came to be dishonoured and he
received intimation through his banker on 05.12.2008 and
thereafter, he got issued notice dated 13.12.2008 and it
was served on the respondent - accused on 20.12.2008.
The complaint ought to have been filed within 45 days
from that day but the appellant - complainant filed the
complaint on 30.03.2009. The complaint ought to have
been filed on or before 04.02.2009. As the complaint is
filed on 30.03.2009, there is a delay of 54 days in filing
the complaint.
NC: 2024:KHC:19507
7. Nothing is stated in the averments of the
complaint regarding the delay in filing the complaint. But,
a separate application is filed seeking condonation of
delay. The delay sought to be condoned in the said
application is 16 days in filing the complaint. In the
averments of the said application it is stated that the
appellant - complainant was not keeping well and was
suffering from viral fever and the Doctor suggested the
complainant to take bed rest at-least for one week and
therefore, the complainant was taking rest and he could
not file the complaint within time. The appellant -
complainant who has been examined as P.W.1, in his
affidavit filed in lieu of chief examination, has stated that
he could not present the complaint within time due to his
ill health and was suffering from viral fever and the Doctor
had suggested him to take rest. The appellant -
complainant neither stated in the complaint nor in his chief
examination that he was admitted to the hospital. But, in
his further chief examination he has stated that he was
admitted to Ramakrishna Hospital as inpatient for 30 days.
NC: 2024:KHC:19507
The appellant - complainant in that regard has not
produced any documents. The appellant - complainant has
not made any efforts to summon the documents from the
said Ramakrishna Hospital wherein he took treatment for
his illness. Even though the delay is for 54 days, the
appellant - complainant has sought for condonation of
delay of 16 days.
8. Submission of the learned counsel for appellant
- complainant that the testimony of P.W.1 has remained
unchallenged and therefore, the appellant - complainant
has not chosen to examine any other witnesses also
cannot be taken into account. Even if the testimony put
forth by the appellant - complainant is accepted as it is,
the reasons assigned are not sufficient to condone the
entire delay of 54 days in filing the complaint as the delay
sought to be condoned is 16 days and as P.W.1 has stated
that he was suffering from viral fever for 30 days.
9. Considering all these aspects, the learned
Magistrate has rightly rejected the application filed by the
appellant - complainant seeking condonation of delay in
NC: 2024:KHC:19507
filing the complaint. There are no grounds to admit the
appeal. Hence, the appeal is dismissed.
Sd/-
JUDGE
LRS
