IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 22ND DAY OF JULY, 2019 BEFORE THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ CRIMINAL APPEAL No.1290/2018 Between:
Mohammed Shafi S/o Mohammed Hanif Aged about 65 years Residing at No.17 Srinidhi Paradise 1st Stage, 1st Block HBR Layout Bengaluru-560043. ... Appellant (By Sri L.M. Chidanandayya, Advocate) And:
Mr. Prakash.R S/o Sri Rame Gowda Aged about 41 years Residing at No.629 12th Cross, M.C.E.C.H.S. Layout Dr. S.R.K. Nagar Post Bengaluru-560077. ... Respondent This Criminal Appeal is filed under Section 378(4) of Cr.P.C. praying to set aside the order dated 11.07.2018, passed by the XIV A.C.M.M., Mayo Hall unit at Bengaluru (ACMM-14) in C.C.No.56637/2017- acquitting the respondent/accused for the offence punishable under Section 138 of N.I. Act and etc., This Criminal Appeal is coming on for Orders, this day, the Court delivered the following:
ORDER This appeal is preferred by the complainant in C.C.No.56637/2017 on the file of the Court of XIV Additional Chief Metropolitan Magistrate, Mayohall Unit, Bengaluru, wherein the learned Magistrate vide order dated 11.07.2018 dismissed the complaint for non- prosecution and consequently discharged the accused.
2. I have heard the learned counsel appearing for the appellant/complainant.
3. A complaint under Section 138 of Negotiable Instruments Act, 1881 read with 200 of Cr.P.C., (referred as to the ‘Act’ for short) was filed stating that in discharge of legally enforceable debt, the accused issued five cheques totally amounting to Rs.24,00,000/- and in the present case, when the cheque bearing No. 235369 dated 15.04.2017 for a sum of Rs.4,00,000/- drawn on Axis Bank Ltd., Bengaluru was presented to the bank, the same was dishonored with an endorsement dated 19.04.2017 stating ‘Account Closed’, which was again presented at the request of the accused, however, again dishonoured with a memo for the reason ‘Account Closed’ on 11.05.2017 and inspite of service of notice, the accused failed to repay the amount and therefore, the respondent committed an offence punishable under Section 138 of the Act.
4. The complaint was presented on 06.07.2017.
The learned Magistrate after recording the sworn statement of the complainant proceeded to register the criminal case against the accused and issued summons vide order dated 12.08.2017.
5. The learned Magistrate, by an order dated 11.07.2018, dismissed the complaint for non-appearance of the complainant and for non-prosecution i.e., for not taking steps and consequently, the accused was discharged.
6. Against the aforesaid order passed by the learned Magistrate, the complainant has presented this appeal 7. The learned counsel appearing for the appellant submits that on 15.12.2017, the complainant took steps and since the accused refused to receive the summons, NBW came to be issued. He submitted that the complainant had engaged the services of a new counsel and unfortunately, he was not able to appear when the case was called. It is submitted that non- appearance before the trial Court is for bonafide reasons without any intention.
8. The learned counsel further submits that an opportunity may be given to the complainant to prosecute his appeal since the amount involved in five cases is Rs.24,00,000/- and therefore, submits that the impugned order passed by the learned Magistrate may be set aside by allowing the appeal.
9. A perusal of the order sheet shows that on 06.07.2017, a complaint was filed before the Court of XIV Additional Chief Metropolitan Magistrate, Mayohal Unit, Bengaluru under Section 200 Cr.P.C., for the offence punishable under Section 138 r/w Section 142 of N.I. Act. On 07.07.2017, the office was directed to send the entire file to the LVIII ACMM Court for needful action. However, again the case was transferred to XIV Additional Chief Metropolitan Magistrate, Mayohal Unit, Bengaluru on the point of jurisdiction.
10. On 12.08.2017 office was directed to register a criminal case and summons came to be issued to the accused by RPAD. The order sheet dated 29.01.2018 goes to show that summons issued to accused by RPAD was returned as refused. Hence service of summons on the accused by RPAD was held sufficient. The accused remained absent. Therefore NBW was issued to the accused. On 27.02.2018, NBW was reissued. The NBW had remained unexecuted. Since the complainant also remained absent on the subsequent dates, the learned Magistrate by an order dated 11.07.2018 dismissed the complaint for non-prosecution.
11. It is no doubt that the complainant has remained absent and there was no representation on his behalf. It is also seen that though the summons were issued to the accused, the same was refused and therefore, the service was held as sufficient. The accused did not appear before the trial Court. Inspite of issuance of NBW, the same was not executed.
12. The learned counsel appearing for the appellant submits that the amount involved in five cases is Rs.24,00,000/- and if the complaint is not restored to file, a great hardship would be caused to the complainant. He submits that the complainant will be diligent hereafter in prosecuting the complaint.
13. The learned Magistrate has come to the conclusion that the complainant has not prosecuted the case as required and the complainant was absent through out. Inspite of granting sufficient opportunity to the complainant, no necessary steps were taken. Thus, I find no illegality in the order passed by the trial Court. However, in the interest of justice, I deem it fit to give one more opportunity to the complainant to prosecute the appeal by imposing costs. Accordingly, I proceed to pass the following;
ORDER The order dated 11.07.2018 passed in C.C.No.56637/2017 on the file of the Court of XIV Additional Chief Metropolitan Magistrate, Mayohall Unit, Bengaluru, whereby dismissing the complaint for non-prosecution is hereby set aside.
The complaint shall be restored to its file and the learned Magistrate is directed to proceed in accordance with law.
The complainant shall deposit a cost of Rs.2,500/- (Two thousand five hundred only) and it shall be deposited with the State Legal Services Authority and a copy of the receipt shall be produced before the trial Court on or before 16.08.2019.
The complainant shall appear before the trial Court on 16.08.2019 without any prior notice.
The criminal appeal is disposed off.
[ssb Sd/- JUDGE