IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR. JUSTICE B.A. PATIL CRIMINAL APPEAL NO.227/2019 BETWEEN:
M/s. Shriram Transport Finance Co., Ltd., A Company registered under The Indian Companies Act having its Administrative Office at Mookambika Complex, III Floor, No.4, Lady Desikacharya Road, Mylapore, Chennai And Regional Office at No.29/A, 2nd Floor, K.H.Road, Bengaluru -560 027, Represented by its Power of Attorney holder Sri. Girish K.V., S/o. Veerabhdraiah, Aged about 42 years. …Appellant (By Sri. K. Prasanna Shetty, Advocate) AND Sri. Girish N, S/o. Nagaraj T., Major in Age, R/at No.67, 7th Main, 4th Cross, 4th Building, Nandini Layout, Bengaluru -560 096.
…Respondent (By Sri. Vedhu Kumar Y.S, Advocate -absent) This Criminal Appeal is filed under Section 378(4) of Cr.P.C. praying to set aside the judgment and order of acquittal dated 10.02.2017 passed by the XXVII Additional C.M.M. Bengaluru in C.C. No.22293/2015 –acquitting the respondent/accused for the offence punishable under Section 138 of N.I. Act.
This Criminal Appeal coming on for Admission, this day, the Court delivered the following:
JUDGMENT The present appeal has been preferred by the appellant/complainant being aggrieved by the order dated 10.02.2017 passed in C.C. No.22293/2015 passed by the learned XXVII Additional Chief Metropolitan Magistrate Court, Bengaluru wherein the complaint was dismissed and accused was acquitted.
2. I have heard the learned counsel for the appellant/complainant, respondent and his counsel remained absent.
3. Though this case is listed for admission, with the consent of learned counsel for the appellant, same is taken up for final disposal.
4. It is the submission of learned counsel for the appellant that the order of trial Court is arbitrary, illegal, erroneous, contrary to law and adverse to the material placed on record. It is his further submission that the learned counsel by mistake wrongly mentioned the date of appearance in his dairy and as such he was not present on the date of hearing and could not intimate to the complainant. Without giving any opportunity to the parties the trial Court has erroneously dismissed the complaint. He has got fair chances of success and he has given the loan amount to the respondent/accused. He will be put to greater hardship if the complaint is dismissed.
On these grounds he prayed to set aside the impugned order and restore the complaint to its original file.
5. I have carefully and cautiously gone through the certified copy of the order of trial Court.
6. The complaint was filed by the complainant on 06.04.2015 and subsequently sworn statement was recorded on 09.09.2015 and cognizance was taken. Thereafter summons was issued to the accused. Subsequently, the summons was not served to the accused as the process fee was not paid. Further, the Presiding Officer was on leave and as such the case was adjourned. 4 to 5 adjournments were given for taking the steps to serve the notice to the respondent/accused. But on 10.12.2017 when the case came up before the Court, the complainant and his counsel remained absent and as such the impugned order was came to be passed. When the accused has not been served with a notice and the case was for taking steps to serve the notice to the accused then, under such circumstances, one more opportunity could have been given to the complainant to take steps and to serve the notice.
7. When the parties have come before the Court for relief then under such circumstances, a duty is cast upon the Court to give full opportunity to the parties and thereafter a reasoned legal order has to be passed. It is the specific contention of learned counsel for the appellant/complainant that because of wrong mentioning of the date in the dairy of the Advocate, he did not inform the complainant and he also could not make himself present before the Court on the date of hearing. When there being no fault on the part of the complainant, as well as on the counsel appearing on behalf of the complainant, the said order has been passed. It appears that there is some force in the argument advanced by the learned counsel for the appellant. If one more opportunity is given to the complainant, then under such circumstances I feel it is going to meet the ends of the justice.
8. In the light of the discussions held by me above, the appeal is allowed and the order dated 10.02.2017 passed by the XXVII Additional Chief Metropolitan Magistrate Court in Crl.P. No. 22293/2015 is set aside and the matter is remitted to the trial Court with a direction to give full opportunity to the complainant to serve the notice to the accused and thereafter dispose off the case expeditiously, within a period of one year after service of the notice to the accused. It is also hereby directed that the complainant must be diligent, he must keep himself present before the Court as and when it is ordered to do so. He is directed to appear before the Court below without further notice on 04.11.2019.
Sd/- JUDGE BVK