IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 01ST DAY OF AUGUST 2019 BEFORE THE HON’BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL APPEAL NO.264 OF 2017 BETWEEN:
SMT MADHAVI @ KALYANI AGED ABOUT 47 YEARS, W/O V CHENNAIAH , R/O NO.B-26/3, DRDO PHASE II C V RAMAN NAGAR, BENGALURU 560093.
(BY SRI: R. KRISHNA REDDY, ADVOCATE) AND SRI SUDHAKAR AGED ABOUT 48 YEARS, S/O LATE T.C. SUBHA RAYUDU, R/O FE-37, 2ND CROSS, SRIRAMANAGARI OLD AIRPORT ROAD, HAL POST, BENGALURU 560017.
(BY SRI: JAGADEESH P, ADVOCATE-ABSENT) ... APPELLANT ... RESPONDENT THIS CRL.A IS FILED UNDER SECTION 378(4) CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 11.01.2017 PASSED BY THE XIV A.C.M.M., BENGALURU IN C.C.NO.53005/2014 - ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE P/U/S 138 OF N.I.ACT.
THIS CRL.A COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:-
JUDGMENT Heard learned counsel for appellant. Perused the records. Learned counsel for respondent is absent.
2. Appellant herein filed a private complaint under section 200 Cr.P.C. seeking action against the respondent herein for the alleged offence punishable under section 138 of N.I. Act. After issuance of summons, the appellant/complainant adduced her evidence and the respondent/accused was examined under section 313 Cr.P.C. At that stage, respondent/accused moved an application under section 311 Cr.P.C. to recall PW-1. Same was allowed and the matter was set down for cross-examination on 07.11.2016. On that day, complainant and her counsel failed to appear before the Court, as a result, learned magistrate dismissed the complaint under section 256(1)Cr.P.C.
3. A perusal of the order sheet maintained by the court below discloses that the appellant/complainant has been diligently pursuing the complaint and had infact adduced her evidence making out a case under section 138 of N.I. Act. It is stated in the appeal memo that on account of wrong noting of the date as 17.11.2016 instead of 07.11.2016, the alleged mishap has happened and the same was not deliberate or intentional.
Having heard the learned counsel for appellant, the cause shown by the appellant/complainant appears to be true and acceptable. The very fact that the appellant has been pursuing the matter diligently, there is no reason to doubt the genuineness of the cause shown by the appellant.
As a result, the appeal is allowed. The impugned order dated 11.01.2017 is set-aside. Proceedings in C.C.No.53005/2014 on the file of learned XIV Addl. CMM, Bengaluru are directed to be restored to file. Appellant/complainant shall tender herself for cross- examination on the date fixed by the trial Court without fail.
Parties are directed to appear before the trial Court on 22.08.2019.
Sd/- JUDGE *mn/-