IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 07TH DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL APPEAL NO.1116/2018 BETWEEN:
Naveen Kumar B.H. Aged 49 years, R/o No.745/1, 2nd Cross, 11th Main, K.B.Extension, Davanagere – 577 001.
(By Sri R.Shashidhara, Advocate) AND:
1. M/s. Samruddi Chit Funds (R) # 24/1C, 1st Floor, Next to Vijaya Hotel, P.J.Extension, AVK College Road, Davanagere – 577 002.
2. K.S.Mallikarjuna S/o Shivappa, Major, R/at # 1789/46, 14th Cross, Siddaveerappa Badavane, Davanagere – 577 001.
3. Nagangowda B.S. Age Major, R/at # 1695/57, Nanda Nandana Nilaya, Ward No.36, (Vinayaka Badavane) Saraswatinagara, ...Appellant C-Block, Sri Maharshi Valmiki Road, 1st Main Road, 3rd Cross, Davanagere – 577 001.
... Respondents (By Sri Devaraj.G.D., Advocate for R3 – Absent; R1 and 2 are served and unrepresented) This Criminal Appeal is filed under Section 378(4) Cr.P.C. by the Advocate to set aside the order passed by the II Additional District and Sessions Judge at Davanagere in Crl.RP.No.93/2017 dated 05.03.2018 confirming the order passed by JMFC III Court at Davanagere in C.C.No.790/2017 dated 31.10.2017 and restore the case of the complainant, by allowing this appeal.
This Criminal Appeal coming on Hearing on Interlocutory Application, this day, the Court made the following:
J U D G M E N T The present appeal has been preferred by the complainant/appellant challenging the order passed by II Additional District and Sessions Judge at Davanagere in Crl.RP.No.93/2017 dated 05.03.2018 where under the order passed by J.M.F.C. III Court at Davanagere in C.C.No.790/2017 dated 31.10.2017 was confirmed by dismissing the Revision Petition.
2. I have heard the learned counsel for appellant/complainant and though notice served on respondent Nos.1 and 2 there is no representation. Learned counsel for respondent No.3 remained absent.
3. The gist of the complaint is that a private complaint was filed by the complainant alleging that accused No.1 was running a chit and accused Nos.1 to 3 are the partners. Complainant joined as a member on March 2012 in group No.G4 ticket No.DG 26 for chit value of Rs.5,00,000/- payable in 50 monthly installments at the rate of Rs.10,000/- per month. The complainant paid about 48 installments, the accused announced to close the chit and agreed to give Rs.4,80,000/- to complainant, in that connection he issued one postdated cheque bearing No.349926 dated 25.03.2017 drawn on IDBI Bank for a sum of Rs.2,30,750/-. As per the advice of accused, he presented the cheque and it was returned with an endorsement “Insufficient Funds”. Thereafter, he issued a legal notice, the same was duly served but accused did not pay the amount and as such he filed the complaint under Section 200 of Cr.P.C.
4. It is the submission of learned counsel for the appellant that the complaint filed under Section under Section 200 of Cr.P.C. came to be dismissed. After recording the sworn statement of the complainant, though he has paid the RPAD covers and process, the office note has falsely mentioned it as RPAD not furnished. On 31.10.2017 the learned JMFC for having not taken the steps dismissed the complaint and acquitted the accused without making any justifiable grounds. It is his further submission that the said aspect has also not been properly considered and appreciated by the I Appellate Court. On these grounds he prayed to set aside the impugned order and a fair opportunity should be given to the complainant to pursue his case and prayed to allow the appeal.
5. Learned counsel for respondent No.3 remained absent.
6. I have carefully and cautiously gone through the submissions made by the learned counsel appearing on behalf of the complainant-appellant and perused the order of the trial Court as well as the I Appellate Court.
7. It is not in dispute that the private complaint is filed under Section 200 of Cr.P.C. and thereafter, the sworn statement was recorded and the Court issued notice to the accused by taking the cognizance.
8. As could be seen from the records, it requires that the complainant has to furnish the copies of the complaint, list of witnesses and the process as well as the covers to serve the notice as contemplated under Section 204(4) of Cr.P.C. It is the specific contention of the learned counsel for the appellant-complainant that he has furnished the said process fee as well as the RPAD covers, but the same has not been mentioned in the order sheet and because of the inadvertence and mistake the Court below has dismissed the complaint. Whether he has paid the said covers and process fee or not is a matter which has to be considered only when all the records are secured.
9. But any how on going through the order dated 31.10.2017, it indicates that only because the process fee has not been furnished, the complaint was dismissed for non-prosecution and accused is acquitted. I feel that the principles of natural justice requires an opportunity has to be given to the complainant and if the said orders are set aside and the matter is remitted back to the learned JMFC Court, Davanagere with a direction that the complainant has to pay the process fee within ten days from the receipt of the order of this Court it would meet the ends of justice. The trial Court can issue the process to the accused and after appearance of the accused recording the evidence of both the complainant as well as the accused by following the procedure established by law can dispose of the case on merits in accordance with law. With the above observations I pass the following order.
The appeal is allowed and the order passed by the J.M.F.C. III Court at Davanagere in C.C.No.790/2017 dated 31.10.2017, confirmed by the II Additional District and Sessions Judge at Davanagere in Crl.RP.No.93/2017 dated 05.03.2018 are set aside and consequently the order passed by is set aside and the case is restored to its original file to the stage which was fixed as on 31.10.21017, with the observations that the said case may be posted for payment of the process fee as well as RPAD covers.
Sd/- JUDGE GJM