IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL APPEAL NO.944/2019 Between:
Sri. H. Murthy S/o Hanumaiah Aged about 40 years R/at No.226, Road, ISCON Akshayapatre, 2nd Main Maruthinagar, Gubbalalla Subramanyapura Bengaluru – 560 056. … Appellant (By Sri. Abhishek K., Advocate for Smt. Usha M.V., Advocate) And:
1. Sri. Chowdeshwari Trading Company Rep. by its Proprietor Sri. Chethan R/at No.03, 2nd ‘A’ Cross NGEF Layout Main Road Nagarbhavi Bengaluru – 560 072.
2. Sri. H. Chethan S/o Narayanappa Aged about 32 years R/at No.03, 2nd ‘A’ Cross NGEF Layout Main Road Nagarbhavi Bengaluru – 560 072 ... Respondents (Sri. Kiran Kumar H.S., Advocate) This Criminal Appeal is filed under Section 378(4) of Cr.P.C. pleased to set aside the order/judgment dated 26.04.2019 passed by the XVI A.C.M.M., Bengaluru in C.C.No.7213/2018, acquitting the respondents/accused for the offence punishable under Section 138 of the N.I.Act.
This Criminal Appeal is coming on for Orders, this day, the Court delivered the following:
J U D G M E N T This appeal has been preferred by the appellant/complainant aggrieved by an order of dismissal dated 26.04.2019 passed by the Court of XVI Additional Chief Metropolitan Magistrate, Bengaluru in C.C.No.7213/2018.
2. I have heard the learned counsel for the appellant/complainant and learned counsel for the respondents/accused Nos.1 and 2.
3. Though this case is listed for orders, with the consent of learned counsel appearing for both the parties, the same is taken up for final disposal.
4. The factual matrix of the case are that the complaint was registered against accused Nos.1 and 2 for the offences punishable under Section 138 of Negotiable Instruments Act, 1881 (‘the N.I.Act’ for short) contending that they were close friends and accused No.2 was carrying on business in the name and style of Sri. Chowdeshwari Trading Company and accused No.2 is the Proprietor. In order to meet his family necessities and to improve his business had borrowed a hand loan of Rs.14,00,000/- and the same was paid by complainant to accused Nos.1 and 2 by way of RTGS and cash in the month of November, 2015. Accused No.2 has also executed a pro-note with regard to repay the amount within four months. Subsequently, two post dated cheques dated 09.06.2017 and 28.07.2017 were issued for a sum of Rs.7,00,000/- each. When the same was presented to the bank, they were got dishonoured and on oral request, again it was presented and it was dishonoured with shara ‘funds insufficient’. Thereafter, a legal notice was issued on 29.08.2017. Though the said notice served on them, accused Nos.1 and 2 did not replied to the said notice and as such, a private complaint has been filed.
5. It is the submission of the learned counsel for the appellant/complainant that the learned Magistrate took the cognizance of the offence, recorded sworn statement of the complainant and secured the presence of accused Nos.1 and 2. Thereafter, the Court has recorded plea of accused Nos.1 and 2, read over and explained to him. Accused Nos.1 and 2 have not pleaded guilty and claims to be tried. As such, the trial was held. In order to support the case of the complainant, he was already examined as PW.1 at the time of sworn statement of the complainant itself and the case was posted for cross-examination of PW.1. PW.1 was present on earlier dates of hearing. The accused was absent and exemption application was came to be filed and when the case was posted for cross-examination on 26.04.2019, only on one occasion the complainant was absent, however, the proxy counsel has prayed time but the said prayer was rejected and the complaint was dismissed erroneously without giving an opportunity.
6. It is his submission that the complainant- PW.1 was ever ready to put forth himself for cross- examination. He further submitted that the Court below has taken the cognizance after satisfying the fact that the ingredients of Section 138 of the N.I.Act have been proved. Under such circumstances, the order of dismissal is not justifiable. Without giving an opportunity, the complaint was dismissed. On these grounds, he prayed to allow the appeal and to set aside the order of trial Court and remit back the case to the Court below to give full opportunity to the appellant/complainant and dispose the case on merits.
7. Per contra, learned counsel appearing on behalf of the respondents/accused Nos.1 and 2 vehemently argued and submitted that on 26.04.2019, the case was called twice, the complainant and his counsel were absent. Even, no application has been filed to exempt the complainant, inamicably, the trial Court has dismissed the complaint in the absence of the complainant. He further submitted that PW.1 is not ready to put himself for cross-examination. Under such circumstances, the order of the trial Court is justifiable. On these grounds, he prayed to dismiss the appeal.
8. I have carefully and cautiously gone through the submissions made by the learned counsel appearing for the parties and perused the records.
9. The certified copy of the order sheet produced along with the appeal clearly goes to show that the complaint was filed on 13.10.2017 and at that time, the complainant was present and the case was registered as PCR. Subsequently, the case was posted for recording the sworn statement, the same was recorded and the cognizance was taken. It also reveals that accused Nos.1 and 2 were secured and on 16.08.2018, the accused was absent and an application under Section 205 of Cr.P.C. was filed and the same was allowed. Subsequently, on 01.09.2018, the accused was appeared and he was enlarged on bail. Thereafter, the plea was recorded, an application has filed under Section 145(2) of the N.I.Act and the sworn statement affidavit filed by the complainant is treated as the chief- examination and the case was posted for cross- examination of PW.1. The case was adjourned to 04.10.2018. On that day also the accused was absent, exemption application filed and the case was adjourned to 05.11.2018. On 05.11.2018, the concerned P.O. was on leave and as such, the case was called to 07.12.2018 and on that day, the accused and their counsel were present but the complainant and his counsel were absent and the case was adjourned to 11.01.2019. On 11.01.2019, the accused was present and the complainant was absent and there is no representation, the case was adjourned to 05.02.2019 on payment of cost of Rs.500/-. On 05.02.2019, the accused was absent and exemption was filed and the case was adjourned to 02.03.2019 and on that day, the accused prayed time to cross examine PW.1 and as such, it was adjourned to 05.03.2019 and on that date, the accused was absent and the exemption application was filed. PW.1-complainant was present, the case was adjourned to 30.03.2019. On 30.03.2019, accused No.2 was present, his counsel was absent and the complainant and his counsel were present. The time was granted on 26.04.2019. On 26.04.2019, the impugned order was came to be passed, the said order reads as under:
“This case is called out at 11.00 AM. The Accused No.2 is present along with his counsel. The same is allowed. Neither the complainant nor his counsel is present. Call this case again at 3.00 pm.
This case is called out once again at 03.35 PM. Neither the complainant nor his authorized counsel is present. The Proxy counsel for the complainant Kum.Usha is present and filed EP for the complainant with her signature on it and prays to grant one final adjournment on heavy cost.
The Defence Counsel is present and seriously opposes to grant any more adjournments.
The order sheet goes to show that even on the last date of hearing when this case was posted for the cross examination of the Complainant as last chance the Complainant was not present, though his counsel appeared at 3 p.m.
The order sheet goes to show that though this court has granted seven adjournments at the stage of cross examination of the complainant and the Defence counsel is ready to cross examine him from the first date of hearing fixed for the cross examination, for the reasons best known to him, the complainant has not chosen to tender for his cross examination.
Moreover the EP filed on behalf of the complainant today is by a counsel who is not on record cannot be accepted by this Court.
Hence, the same is rejected and since the complainant is not showing interest in prosecuting this case, the prayer of his proxy counsel to grant adjournment is rejected and the complaint is dismissed for non- prosecution.”
On close reading of the order sheet and records, it indicates that the appellant/complainant was present on many occasions, the accused was absent and the case was adjourned. Only on one occasion i.e., on 26.04.2019, the complainant was absent. Even, the records go to show that the proxy counsel has represented the complainant and his prayer has been rejected. Thereafter, the complaint was dismissed for non-prosecution. That itself goes to show that the Court below without application of mind has erroneously dismissed the complaint that too, when on previous occasions the accused was absent and the case was adjourned. Without noticing the said fact, only when the complainant was absent, even though the proxy counsel has represented, prayer made to grant time has got rejected and complaint has been rejected. Under such circumstances, it is the duty of the Court to proceed with the matter in accordance with law. Though accused was absent many times, the case was adjourned. If the matter is adjourned by giving opportunity, no prejudice could have been caused to the accused. By doing so, the Court below without giving any opportunity has dismissed the complaint.
10. Under the said facts and circumstances, I am of the considered opinion that the impugned order of the trial Court is liable to be set aside. Accordingly, the appeal is allowed and the order of dismissal dated 26.04.2019 passed in C.C.No.7213/2018 passed by the Court of XVI Additional Chief Metropoitan Magistrate, Bengaluru is set aside and the matter is remitted back to the Court below with a direction that the Court below is to give full opportunity to both the parties and to dispose of the case on merits in accordance with law with an outer limit of one year from the date of receipt of this order.
Both the parties who are present before this Court are directed to appear before the Court below without further notice on 11.11.2019 at 11 a.m.
NR/-
Sd/- JUDGE