IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL APPEAL NO.43 OF 2018 BETWEEN:
Shashank A B S/o A B Ashwathanarayanappa Aged about 30 years Residing at No.236/18, New No.16 Vijayashree Layout, Arekere B.G. Road, Bangalore-560 076. ...Appellant (By Sri Ganesh Kumar.R, Advocate) AND:
S. Byra Reddy Aged about 50 years Residing at No-16/1 Venkateshappa Layout Kembathahalli, Gottigere Post B.G.Road, Bangalore-560 083. ... Respondent (By Sri.G.S. Srinivas, Advocate) This Criminal Appeal is filed under Section 378(4) of Cr.PC praying to set aside the judgment and order dated 19.08.2016 passed by the XXII Addl. C.M.M., Bengaluru in C.C.No.8498/2016 – acquitting the respondent/accused for the offence p/u/s 138 of N.I. Act.
This Criminal Appeal coming on for Orders, this day, the Court delivered the following:
J U D G M E N T The present appeal has been preferred by the appellant-complainant challenging the order passed by the Civil Judge (Junior Division) and JMFC, Anekal in C.C.No.8498/2016 dated 19.08.2016 wherein the private complaint came to be dismissed for non- prosecution and for default.
2. I have heard the learned counsel for the appellant. The learned counsel for respondent remained absent.
3. The factual matrix of the complaint is that the appellant-complainant has filed a private complaint stating that respondent-accused borrowed loan of Rs.15,00,000/- (Rupees Fifteen lakhs only) and he did not discharge the said liability. In order to discharge the liability, respondent-accused issued a cheque dated 11.07.2014 for the said amount and when the said cheque was presented for encashment, it was returned with shara “funds insufficient”. As per the request of the respondent-accused, the cheque was presented on 10.10.2014 and it was returned as “account blocked” on 14.10.2014. Thereafter, notice came to be issued and a private complaint was filed.
4. It is the submission of the learned counsel for the appellant-complainant that the Court below ought to have given sufficient opportunity to the appellant-complainant to lead the evidence. Instead of giving opportunity, it has dismissed the complaint for non-prosecution. It is his further submission that on earlier dates, he was not present because of financial crisis and no communication of date of the case fixed for hearing, he remained absent for three adjournments. The Trial Court after noting the same, has dismissed the complaint and acquitted the respondent-accused.
5. He further submitted that, huge amount is involved in the said case and respondent-accused also not given any reply to the said notice and if respondent- accused is acquitted, greater hardship is caused to the complainant. He is ready to attend the Court on regular basis. On these grounds, he prays to allow the appeal and to set aside the impugned order.
6. Learned counsel for the respondent and respondent remained absent.
7. I have carefully and cautiously gone through the certified copy of order of the Trial Court, which is made available. Earlier, a private complaint was filed by appellant-accused and after recording his sworn statement by way of affidavit and after perusing the records and satisfying, the Court below registered the case. Thereafter, the Court below has issued notice to respondent-accused. After service of notice, respondent-accused has appeared before the Court below through his counsel and enlarged on bail on 04.06.2016. Thereafter, the case was posted for evidence and on 19.08.2016, the case has been dismissed for non prosecution and for default. As could be seen from the order sheet, the case has been filed on 26.03.2016 and cognizance was taken on the same day. On the same day, notice was also issued and subsequently, on 18.04.2016, process fee was paid and in pursuance of the notice, accused appeared before the Court below on 04.06.2016 and the case was posted for evidence. After recording the plea of the respondent- accused on 02.07.2016, appellant-complainant was absent and it was adjourned to 03.07.2016. On that day also, appellant-complainant was absent and on 19.08.2016, again, he remained absent and the impugned order came to be passed. By going through the order sheet, it indicates that appellant-complainant remained absent and as such the complaint came to be dismissed.
8. It is the contention of appellant-complainant that his father was sick and he is the only person to look after him and there was no communication of the date of hearing. It is further submitted that he was under financial crisis and he had to wound up his business. Under such circumstances, he did not appear before the Court and proceed with the matter. If one more opportunity is given to the appellant-
complainant to prove his case, then under such circumstances, it is going to meet the ends of justice.
In that light of discussion held above, the appeal is allowed and impugned order dated 19.08.2016 in C.C.No.8498/2016 passed by Civil Judge (Junior Division) and JMFC, Anekal, is set aside and the matter is remitted back to the Trial Court with a direction to the Trial Court to secure the presence of accused- complainant and after following the procedure and recording the evidence, the case shall be determined on merits expeditiously within an outer limit of eight months from the date of receipt of order of this Court.
Sd/- JUDGE SSD