Karnataka High Court
M/S Gilani Enterprises vs M/S General Engineering on 13 February, 2025
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
-1-
NC: 2025:KHC:6409
CRL.A No. 2100 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. 2100 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
NO.665, 38TH CROSS, 15TH MAIN
Digitally signed by
HEMAVATHY 4TH T BLOCK, JAYANAGAR
GANGABYRAPPA BANGALORE-41
Location: HIGH
COURT OF REPRESENTED BY ITS DIRECTOR
KARNATAKA
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:6409
CRL.A No. 2100 of 2018
J.P.NAGAR 5TH PASHE
BANGALORE-560 078
...RESPONDENTS
(BY SMT. ARYA KUMAR, ADVOCATE FOR
SRI. AJAY J.N, ADVOCATE)
THIS CRL.A. IS FILED U/S.378(4) CR.P.C PRAYING TO
SET ASIDE THE JUDGMENT DATED 21.07.2018 PASSED BY THE
XXIV A.S.C.J AND XXII A.C.M.M., BANGALORE IN
C.C.NO.55793/2017 - ACQUITTING THE RESPONDENT/
ACCUSED FOR THE OFFENCE P/U/S 138 OF N.I ACT.
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 21.02.2018 passed in
C.C.No.55793/2017 by the XXIV A.S.C.J and XXII A.C.M.M
Court (SCCH-26), Bengaluru.
2. Heard learned counsel for the appellant -
complainant and learned counsel for the respondent -
accused
3. The appellant is the complainant and the respondent
is the accused in C.C.No.55793/2017 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 SCCH-XX. The
said application came to be allowed by order dated
01.02.2018 and the case was ordered to be transferred to
S.C.C.H-XXII / XXII A.C.M.M, Bengaluru. The parties were
directed to appear before the transferee Court on
07.04.2018. Even before the matter was sent to the
transferee Court, counsel for the respondent - accused had
filed a memo stating that the case was ought to have been
transferred to XXIV A.S.C.J and XXII A.C.M.M. Court. The
said memo filed by the counsel by advancing the matter
has been allowed and case has been ordered to be
transferred to XXIV A.S.C.J and XXII A.C.M.M. Court
(SCCH-26), Bengaluru. As per the order dated
01.02.2018, the matter was not called in the transferee
Court on 07.04.2018. The matter was called on
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15.06.2018 and on that day, the respondent - accused
was present and the appellant - complainant and his
counsel were absent and the matter was adjourned for
recording the plea to 06.07.2018. On 06.07.2018, the
respondent - accused was present and it was noted that
PW1 and his counsel were absent and the case was
adjourned for cross of PW1 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 complaint for non prosecution has
been challenged by the appellant - complainant in this
appeal.
4. Learned counsel for the appellant - complainant
contends that the order dated 14.02.2018 was passed at
the back of the appellant - complainant by advancing the
case and the matter was not called before the transferee
Court on 07.04.2018 as per the order dated 01.02.2018.
Learned counsel further submits that the stage of the case
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was for recording plea, but it was wrongly noted that it is
for cross examination of PW1 on 06.07.2018 and
21.07.2018. The counsel further submits that the
appellant - complainant and his counsel were not aware of
the proceedings taken up before the XXIV A.S.C.J and
XXII A.C.M.M. (SCCH-26), Bengaluru. Therefore, there is
a bonafide reason for the appellant - complainant for his
non appearance on 21.07.2018.
5. Learned counsel for the respondent would contend
that the appellant - complainant and his counsel were
aware of the transfer of the case and inspite of that they
did not appear before the transferee Court and noting the
same, the learned Magistrate has rightly dismissed the
appeal for non prosecution. Hence, she prayed for
dismissal of the appeal.
6. On perusal of the order sheet, it would indicate that
on 01.02.2018, the application filed by the respondent -
accused under Section 142-A(3) of the N.I.Act has been
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allowed and the case has been transferred to S.C.C.H-XXII
/ XXII A.C.M.M., Bengaluru and the parties were directed
to appear on 07.04.2018. The order sheet further would
indicate that on 14.02.2018, the case has been advanced
on the application filed by the counsel for the respondent -
accused and the memo filed by the respondent - accused
has been entertained and the order dated 01.02.2018 has
been modified and the case came to be transferred to
XXIV A.S.C.J and XXII A.C.M.M Court (SCCH-26),
Bengaluru. As per the order dated 01.02.2018, the matter
was not called before the transferee Court on 07.04.2018.
The matter was called before the transferee Court on
15.06.2018. The said aspect itself would indicate that the
appellant - complainant and his counsel were not aware of
the proceedings before the transferee Court, more so, the
stage of the case was for recording plea and it was
wrongly noted in the order sheet that it was for cross
examination of PW1. Considering the above aspects, the
absence of the appellant - complainant on 21.07.2018
before the transferee Court was for bonafide reason that
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they were not aware of the proceedings before the
transferee Court. There are grounds made out for setting
aside the impugned order dated 21.07.2018 and to restore
the criminal case. In the result, the following;
ORDER
The appeal is allowed. The impugned order dated
21.07.2018 passed by the XXIV A.S.C.J and XXII A.C.M.M
(SCCH-26), Bengaluru is set-aside. C.C.No.55793/2017 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
