Karnataka High Court
Y N Nagaraj vs Sri R Gopinath on 6 June, 2024
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
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NC: 2024:KHC:19743
CRL.A No. 910 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL APPEAL No. 910 OF 2021
BETWEEN:
Y N NAGARAJ
S/O MUNINARASAPPA
AGED ABOUT 60 YEARS
R/AT MUNINARASAPPA GARDEN
NEAR AYYAPPASWAMY TEMPLE
JAKKUR ROAD, YELAHANKA
BENGALURU - 560 064.
...APPELLANT
(BY SRI KIRAN KUMAR D K, ADVOCATE)
Digitally signed by
LAKSHMINARAYANA
MURTHY RAJASHRI AND:
Location: HIGH
COURT OF
KARNATAKA SRI R GOPINATH
S/O RAMAKRISHNAPPA
AGED ABOUT MAJOR
BMTC DRIVER, 1ST MAIN, 3RD CROSS,
HUNASAMARANAHALLI
NEAR VENKATESHWARA PROVISION STORES
BANGALORE - 562 157.
...RESPONDENT
(BY SRI. NATARAJA H V, ADVOCATE)
THIS CRL.A IS FILED U/S.378(4) CR.P.C PRAYING TO SET
ASIDE THE ORDER DATED 21.11.2019, PASSED BY THE A.C.M.M
IN BENGALURU IN C.C.No.30192/2018 AND DIRECT THE TRIAL
COURT i.e., XII A.C.M.M AT BENGALURU TO RESTORE THE
COMPLAINT IN ITS ORIGINAL NUMBER, ACQUITTING THE
ACCUSSED/RESPONDENT FOR THE OFFENCE P/U/S 138 OF THE
N.I ACT.
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NC: 2024:KHC:19743
CRL.A No. 910 of 2021
THIS APPEAL COMING ON FOR ORDERS THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. This appeal is filed praying to set aside the order
dated 21.11.2019 passed in C.C. No. 30192/2018 by
Additional Chief Metropolitan Magistrate (XII ACMM),
Bengaluru and to restore the complaint to its original
number.
2. Heard learned counsel for the appellant -
complainant and learned counsel for respondent - accused
.
3. The appellant - complainant initiated proceedings
against respondent - accused for offence under Section 138
of Negotiable Instruments Act (hereinafter referred to as
`the N.I. Act'). Learned Magistrate took cognizance and
registered criminal case and it was pending in C.C. No.
30192/2018 on the file of XII ACMM, Bengaluru. Said case
came to be listed on 21.11.2019 for taking steps to issue
summons to the respondent - accused. On that day the
learned Magistrate has dismissed the complaint for default
NC: 2024:KHC:19743
for not taking steps to issue summons to the respondent -
accused. Said order has been challenged in this appeal.
4. Learned counsel for appellant - complainant
would contend that the complainant was present on
21.11.2019 before the Court and it was noted in the order
sheet. Case was again taken up in the afternoon and matter
was called before the other Court having concurrent charge.
Said Court having concurrent charge noting the absence of
the appellant - complainant has dismissed the complaint for
default for not taking steps to issue summons to the
respondent - accused. He contends that summons issued to
the respondent - accused was returned un-served as he had
left the address and same was noted in the order-sheet
dated 09.09.2019 and case was posted for steps to
21.11.2019. He further submits that the complainant was
making efforts to collect correct address of the respondent -
accused and without giving sufficient opportunity the
complaint came to be dismissed for default. With this he
NC: 2024:KHC:19743
prayed to allow the appeal and restore the complaint to its
original number.
5. Learned counsel for respondent - accused would
contend that the order-sheet indicate that sufficient
opportunity has been given to the appellant - complainant to
take steps to issue summons to the respondent - accused.
Inspite of granting sufficient opportunity the complainant did
not take steps and therefore, the learned Magistrate has
dismissed the complaint for not taking steps. With this he
prayed to dismiss the appeal.
6. Having heard learned counsel for the parties this
Court perused the material placed on record.
7. A case was registered on 2.11.2018 and it is
noted in the order-sheet that summons issued to the
accused by RPAD has been returned with shara `left the
address'. Thereafter the case was adjourned to 31.05.2019
for taking steps. In the order-sheet dated 31.05.2019 it is
noted that the Presiding Officer is transferred and case is
adjourned to 18.07.2019. Thereafter, the case is taken up
NC: 2024:KHC:19743
on 21.11.2019 before the Court having concurrent charge
wherein it is noted in the order-sheet that complainant is
present, call again. Thereafter, it is noted that the
complainant is absent and he has not taken steps to serve
summons to the accused and dismissed the complaint for
default for not taking steps. As the Presiding Officer was
transferred and the Court was vacant, the complainant could
have been given sufficient opportunity to take steps against
the respondent - accused for issuance of summons as he
has to collect fresh address as the summons issued to the
respondent - accused by the office was returned with shara
`left the address'. The concurrent Court without providing
sufficient opportunity has dismissed the complaint for default
and closed the complaint. Therefore, the said order dated
21.11.2019 requires to be set aside and complaint is to be
restored to its original number.
8. In the result, the following;
ORDER
I. The appeal is allowed.
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II. The order dated 21.11.2019 passed in C.C. No.
30192/2018 by XII ACMM, Bengaluru is set aside.
III. The learned ACMM is directed to restore C.C. No.
30192/2018 to file.
IV. The appellant - complainant and respondent -
accused are directed to appear before the XII
ACMM, Bengaluru, in C.C. No. 30192/2018 on
15.07.2024 without awaiting court notice.
Sd/-
JUDGE
LRS
