Karnataka High Court
M/S Gilani Enterprises vs M/S General Engineering on 13 February, 2025
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
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NC: 2025:KHC:6410
CRL.A No. 2101 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL APPEAL NO. 2101 OF 2018
BETWEEN:
M/S. GILANI ENTERPRISES
NO.22/1, 107, SHILLY PLAZA
K.KAMARAJ ROAD
BANGALORE-560 042
REPRESENTED BY ITS
MANAGING PARTNER
SRI. ALNASIR ABDUL AZIZ GILANI
...APPELLANT
(BY SMT. ANITHA R, ADVOCATE FOR
SRI. T.V. VIJAY RAGHAVAN, ADVOCATE)
AND:
1. M/S GENERAL ENGINEERING
INFRABUILD PVT LTD
Digitally signed by NO.665, 38TH CROSS, 15TH MAIN
HEMAVATHY
GANGABYRAPPA 4TH T BLOCK, JAYANAGAR
Location: HIGH BANGALORE-41
COURT OF
KARNATAKA REPRESENTED BY ITS DIRECTOR
SMT. SAVITHA G ANANTH
2. SMT. SAVITA G. ANANTH
NO.48/A, "SRUSTI"
C/O B.K. RAJENDRAN
11TH CROSS, 6TH MAIN ROAD
3RD PHASE, J P NAGAR
BANGALORE-560 078
PRESENTLY NO.47/A, AKSHYA
NANJUDESWARA LAYOUT
-2-
NC: 2025:KHC:6410
CRL.A No. 2101 of 2018
J.P.NAGAR 5TH PASHE
BANGALORE-560 078
...RESPONDENTS
(BY SMT. ARYA KUMAR, ADVOCATE FOR
SRI. AJAY J.N, ADVOCATE FOR R2;
VIDE ORDER DT.12.06.2023 - NOTICE TO
R1 IS HELD SUFFICIENT)
THIS CRL.A. IS FILED U/S.378(4) CR.P.C PRAYING TO
SET ASIDE THE ORDER OF DISMISSAL FOR NON-
PROSECUTION AS PER ORDER DATED 21.07.2018 IN
C.C.NO.51107/2016 ON THE FILE OF THE 24TH A.S.C.J., AND
XXII A.C.M.M.,(SCCH-26) BANGALORE AND TO RESTORE THE
CASE C.C.NO.51107/2016 TO THE FILE OF THE 24TH A.S.C.J.,
AND XXII A.C.M.M.,(SCCH-26) BANGALORE FOR RECORDING
OF FURTHER PROCEEDINGS FROM THE STAGE OF THE
COMPLAINANTS EVIDENCE AND TO DISPOSE OF THE CASE IN
ACCORDANCE WITH LAW.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
ORAL JUDGMENT
1. This appeal is filed by the appellant - complainant
challenging the order dated 21.07.2018 passed in
C.C.No.51107/2016 by the XXIV A.S.C.J and XXII A.C.M.M
Court (SCCH-26), Bengaluru and to restore
C.C.No.51107/2016.
2. The appellant is the complainant and the respondent
is the accused in C.C.No.51107/2016 registered against
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the respondent - accused for the offence under Section
138 of the Negotiable Instruments Act, 1881 (for short
hereinafter referred to as "N.I.Act"). The said criminal case
was pending on the file of LVII A.C.M.M., Bengaluru. The
respondent - accused filed an application under Section
142-A(3) of the N.I.Act, seeking transfer to S.C.C.H-XXII /
XXII A.C.M.M, Bengaluru. The said application filed by the
respondent - accused came to be allowed by order dated
01.02.2018 and the criminal case was ordered to be
transferred to S.C.C.H-XXII / XXII A.C.M.M, Bengaluru and
the parties were directed to appear before the transferee
Court on 07.04.2018. The matter came to be advanced by
the learned counsel for the respondent - accused on
14.02.2018 and the memo filed by the counsel for the
respondent - accused has been allowed and the order
dated 01.02.2018 has been modified and case came to be
transferred to XXIV A.S.C.J and XXII A.C.M.M (SCCH-26),
Bengaluru. The matter was taken up before the transferee
Court on 15.06.2018 and it was adjourned to 06.07.2018
for recording the plea. On 06.07.2018, the plea was
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recorded and the matter had been adjourned to the
complainant's evidence to 21.07.2018. On 21.07.2018,
noting the absence of the appellant - complainant and his
counsel, the learned Magistrate has dismissed the
complaint for non prosecution. The said order of dismissal
of the appellant - complainant for non prosecution has
been challenged by the appellant - complainant in this
appeal.
3. Heard learned counsel for the appellant -
complainant and learned counsel for the respondent -
accused.
4. Learned counsel for the appellant - complainant
would contend that the appellant - complainant was not
aware of the modification of the order dated 01.02.2018.
The appellant - complainant was not aware of taking up
the criminal case before the transferee Court ie., S.C.C.H-
XXII and XXII A.C.M.M, Bengaluru. The criminal case was
not taken up on 07.04.2018 as per the order dated
01.02.2018. The appellant - complainant was absent only
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on one date ie., on 21.07.2018. The absence of the
appellant - complainant on that day was for the bonafide
reason as the appellant - complainant was not aware of
the matter taken up by the transferee Court. With this,
learned counsel pray to allow the appeal and restore
C.C.No.51107/2016.
5. Learned counsel for the respondent - accused would
contend that the appellant - complainant was aware of the
transfer of the criminal case and inspite of that, he had
remained absent and noting the same, the learned
Magistrate has rightly dismissed the complaint for
non-prosecution. With this, she prayed to dismiss the
appeal.
6. On the application filed by counsel for the respondent
- accused, the criminal case which was pending on the file
of LVII A.C.M.M, Bengaluru was ordered to be transferred
to S.C.CH-XXII / XXII A.C.M.M, Bengaluru and the parties
were directed to appear before the transferee Court on
07.04.2018 without anticipating any notice from the Court.
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On perusal of the order sheet, it would indicate that on
14.02.2018 and the memo filed by learned counsel for the
respondent - accused had been allowed and the order
dated 01.02.2018 was modified and the case was ordered
to be transferred to XXIV A.S.C.J and XXII A.C.M.M
(SCCH-26), Bengaluru. The said criminal case was not
called before the transferee Court on 07.04.2018 as per
the order dated 01.02.2018. The said criminal case was
taken up before the transferee Court on 15.06.2018 and it
was adjourned to 06.07.2018 for recording the plea. On
06.07.2018, plea was recorded and the case came to be
adjourned to 21.07.2018 for the complainant's evidence.
On 21.07.2018, noting the absence of the appellant -
complainant and his counsel, the case came to be
dismissed for non prosecution. As the criminal case was
not taken up before the transferee Court on 07.04.2018 as
per the order dated 01.02.2018, the appellant -
complainant was not aware of the proceedings before the
transferee Court and therefore, the absence of the
appellant - complainant before the transferee Court is for
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a bonafide reason. Therefore, the order dated 21.07.2018
dismissing the complaint for non-prosecution requires to
be set-aside and the criminal case requires to be restored.
In the result, the following;
ORDER
The appeal is allowed. The impugned order dated
21.07.2018 passed in C.C.No.51107/2016 by the S.C.C.H-
XXII / XXII A.C.M.M (SCCH-26), Bengaluru is set-aside.
C.C.No.51107/2016 is ordered to be restored. The
appellant - complainant and the respondent - accused are
directed to appear before the Trial Court on 10.03.2025
without awaiting any Court notice.
Registry is directed to send the Trial Court records
along with a copy of this order to the Trial Court forthwith.
Sd/-
(SHIVASHANKAR AMARANNAVAR)
JUDGE
GH
List No.: 1 Sl No.: 20.1
