Karnataka High Court
L Shashidhar vs K R Raju on 1 March, 2024
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CRL.A No. 1958 of 2016
NC: 2024:KHC:8602
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF MARCH, 2024
BEFORE
THE HON'BLE MS JUSTICE J.M.KHAZI
CRIMINAL APPEAL NO.1958 OF 2016
BETWEEN:
L SHASHIDHAR
AGED ABOUT 53 YEARS
S/O LATE T N LAKSHMINARAYANA SHASTRY
R/AT D.NO.2875, 4TH MAIN,
CHAMUNDIPURAM,
MYSURU DISTRICT - 570 004
...APPELLANT
(BY SRI. P NATARAJU, ADVOCATE)
AND:
K R RAJU
AGED ABOUT 51 YEARS
S/O K RAMAIAH
R/AT D.NO.4565
BEHIND KABINI COLONY
Digitally NEELAKANTA NAGAR,
signed by NANJANAGUDU,
REKHA R
MYSURU DISTRICT - 571 301
Location: High
Court of ...RESPONDENT
Karnataka (RESPONDENT - SERVED)
THIS CRL.A IS FILED UNDER SECTION 378(4) OF CR.P.C
PRAYING TO SET ASIDE THE ORDER PASSED BY THE LEARNED
IV ADDITIONAL I CIVIL JUDGE AND JMFC AT MYSURU IN
P.C.R.NO.2434/2015 DATED 13.10.2016 AND MAYBE PLEASED
TO RESTORE THE P.C.R.NO.2434/2015 ON ITS FILE HAS
PRAYED FOR, BY ALLOWING THIS APPEAL, 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. 1958 of 2016
NC: 2024:KHC:8602
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. At the request of
accused he has extended hand loan of Rs.1,10,000/-.
Accused agreed to repay the same within two months.
However, inspite of repeated request and demand,
accused failed to repay the same and ultimately, issued a
cheque dated 07.02.2013. When presented for
encashment it was dishounoured as "Payment stopped".
After issuing legal notice and on failure of accused to pay
the amount due under cheque, complaint is filed.
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4. On 13.10.2016, it was posted for recording
sworn statement of complainant. C.C.No.534/2015, which
was filed by complainant was transferred to the Court of II
Civil Judge and JMFC., Mysuru from the Court IV Addl. I
Civil Judge and JMFC., Mysuru. On 13.10.2016,
complainant and his counsel did not appear before the trial
Court as they were under an impression that this case is
also transferred to the Court of II Civil Judge and JMFC.,
Mysuru and were present in that Court. By the time they
realize that the present case not transferred, it was
dismissed for non prosecution. The absence of
complainant and his counsel was not intentional and pray
to allow the appeal, restore the complaint and permit the
complainant to prosecute the same.
5. Though duly served with notice,
respondent/accused has failed to appear and contest the
matter.
6. Heard and perused the record.
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7. Thus, complainant prosecuted the accused on
the allegations that the cheque issued by him towards
repayment of a sum of Rs.1,10,000/- came to be
dishonoured as "Payment stopped" and despite due
service of legal notice, accused failed to repay the same.
However, the trial Court dismissed the complaint on
13.10.2016, on the ground that complainant failed to
appear and give his sworn statement, despite granting
sufficient time.
8. The order sheet reveal that complaint was filed
on 04.04.2013 and till 13.10.2016, number of
adjournments were granted to the complainant to give
sworn statement. Ultimately, on 13.10.2016, the trial
Court dismissed the complaint for non-prosecution. The
complainant has claimed that at the relevant point of time,
one more complaint filed by him i.e., C.C.No.534/2015
was transferred to the Court of II Civil Judge and JMFC.,
Mysuru from the Court of IV Addl. I Civil Judge and JMFC,
Mysuru and they were under an impression that this case
is also transferred to the said Court and in fact he and his
NC: 2024:KHC:8602
counsel were waiting in the Court of II Civil Judge and
JMFC, Mysuru, but only C.C.No.534/2015 was called and
the present case was dismissed for non prosecution and
their absence was not intentional.
9. By remaining absent before this Court, the
accused has not challenged the reasons assigned by the
complainant for not appearing before the trial Court.
Moreover, the case is not decided on merit. Having
regarding to the facts and circumstances of the case, 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 13.10.2016 passed
in PCR.No.2434/2015 on the file of IV Addl.
I Civil Judge & JMFC., Mysuru is set aside.
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(ii) The complainant is directed to appear before
the trial Court on 18.03.2024 without waiting
for further notice from the trial Court.
(iii) The complainant shall prosecute the complaint,
without seeking unnecessary adjournments.
(iv) The trial Court is directed to decide the case in
accordance with law, after providing reasonable
opportunity to both parties.
Sd/-
JUDGE
RR
