Karnataka High Court
Sri. J. R. Krishna Murthy vs Sri. K. Ramesh on 24 February, 2025
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
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NC: 2025:KHC:8081
CRL.A No. 1713 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL APPEAL NO. 1713 OF 2023
BETWEEN:
SRI. J.R. KRISHNA MURTHY
S/O J.K. RAMACHANDRAIAH
AGED ABOUT 59 YEARS
R/AT SREERAM SADHANA APARTMENTS
NO.K-37, GOKULA
BENGALURU-560 054
...APPELLANT
(BY SRI. PARIKSHIT S.S, ADVOCATE)
AND:
SRI. K. RAMESH
S/O KANDHASWAMY C
AGED ABOUT 55 YEARS
R/AT NO.1101, PRATHAM CASA SERENE
S.M.ROAD, PRASHANATH NAGAR
Digitally signed by PEENYA, BENGALURU-560 057
LAKSHMINARAYANA
MURTHY RAJASHRI ...RESPONDENT
Location: HIGH COURT
OF KARNATAKA
(BY SRI. DUSHYANTH ARADHYA H.C, ADVOCATE)
THIS CRL.A IS FILED U/S.378(4) OF CR.P.C PRAYING TO
ALLOW THIS APPEAL BY SETTING ASIDE THE ORDER DATED
13.07.2023 PASSED IN C.C.NO.33444/2023 BY XII A.C.M.M
BENGALURU.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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CRL.A No. 1713 of 2023
CORAM: HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
ORAL JUDGMENT
This appeal is filed by the complainant challenging
the order dated 13.07.2023 passed in C.C.No.33444/2018
by the XII Additional Chief Metropolitan Magistrate,
Bengaluru. The appellant is complainant and the
respondent is accused. The case has been registered
against the respondent -accused for offence punishable
under Section 138 of the Negotiable Instruments Act,
1881 (hereinafter referred to as "N.I Act" for brevity)
2. Heard learned counsel for the appellant and
learned counsel for the respondent.
3. The appellant -complainant has initiated
proceedings against the respondent -accused for offence
punishable under Section 138 of the N.I Act and it is
pending in C.C. No.33444/2018 on the file of the XII
Additional Chief Metropolitan Magistrate, Bengaluru. The
said case was posted on 30.06.2023 for cross examination
of P.W.1. On that day, P.W.1 was absent and there was
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no representation on complainant side. The Court has
ordered to issue Court notice to the complainant and the
matter is listed on 13.07.2023. On 13.07.2023 the
complainant was absent. The trail Court has noted the
absence of the complainant inspite of service of Court
notice and dismissed the case for non-prosecution. The
said order dated 13.07.2023 has been challenged by the
complainant in this appeal.
4. Learned counsel for the appellant would
contend that the complainant was present on that date
and the Court of XII Additional Chief Metropolitan
Magistrate, Bengaluru was vacant and matters were taken
up before the incharge Court. He submits that the
complainant enquired with the Bench Clerk and came to
know that incharge Court is not taking up evidence
matters. Therefore, he could not be present before the
incharge Court when the matter is called up. With this, he
prays to allow the appeal and restoration of the case.
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5. Learned counsel for the respondent would
contend that the complainant was aware that the matter
will be called in the incharge Court. Inspite of that he was
not present before the incharge Court and noting the same
the trial Court has dismissed the case of the complainant.
He further submits that unnecessarily the respondent -
accused has been dragged before this Court challenging
the impugned order and he has incurred expenses. He
further submits that in case the Court come to conclusion
to allow this appeal cost may be awarded to the
respondent.
6. Having heard leaned counsels, this Court has
perused the impugned order and material placed on
record.
7. The case has been registered against the
respondent -accused for offence punishable under Section
138 of the N.I Act in C.C.No.33444/2018 was pending on
file of the XII Additional Chief Metropolitan Magistrate,
Bengaluru. The XII Additional Chief Metropolitan
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Magistrate, Bengaluru was vacant and the said matter was
taken up in the incharge Court on 30.06.2023 and
13.07.2023. On both dates the complainant was absent.
On 30.06.2023 the Court has issued Court notice to the
Complainant. The said Court notice has been served on
the complainant. Inspite of service of notice, the
complainant was not present on 13.07.2023 before the
incharge Court. Noting the absence of the complainant,
the incharge Court has dismissed the case of the
complainant.
8. The complainant in the affidavit filed in support
of IA No.1/2023 and in appeal memo has stated that he
was present on the date of the impugned order and could
not be present before the incharge Court as the incharge
Court was not taking up evidence matters. The
complainant ought to be present before the incharge Court
as complainant was served with the Court notice. The
absence of the complainant before the incharge Court on
the date of impugned order was for bonafide reason.
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Cheques are involved in the case are five and total amount
of five cheques is Rs.33,00,000/- (rupees thirty three
lakhs only). Considering the said aspect, the trial Court
ought to have given another opportunity to the appellant -
complainant. The appellant -complainant has made out
case for setting aside the impugned order and restoration
of criminal case. The respondent -accused has been
unnecessarily dragged before this Court challenging the
impugned order. Therefore, the appeal has to be allowed
subject to payment of cost.
10. In the result, the following
ORDER
i) The appeal is allowed.
ii) The impugned order dated 13.07.2023 passed in
C.C.No.33444/2023 by the XII Additional Chief
Metropolitan Magistrate, Bengaluru is set aside. The
Criminal Case No.33444/2018 is ordered to be
restored. The above said order is subject to the
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payment of cost of Rs.2,000/- payble by the
appellant to the respondent.
iii) Parties directed to appear before the trial Court
without awaiting Court notice on 27.03.2025.
iv)The appellant -complainant is directed to pay
/deposit the said cost of Rs.2,000/- to respondent on
or before 27.03.2025.
Sd/-
(SHIVASHANKAR AMARANNAVAR)
JUDGE
DSP
