IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12th DAY OF DECEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A.PATIL CRIMINAL APPEAL No.1232/2019 BETWEEN:
Sri R.Venkataswamy Reddy S/o late Ramaiah Reddy Aged about 65 years Residing at No.3-12/2, Madiwala 5th Cross 4th Link Road (Post Office) Bengaluru-560 068.
(By Sri G.M.Srinivasa Reddy, Advocate) AND:
Sri C.H.Maruthi S/o B.G.Hanumantharayappa Aged about 27 years R/at No.186/2, Hesaraghatta Main Road Chikkasandra, Bengaluru-560 057.
…Appellant …Respondent (By Sri Parashuram R. Hattarakihal, Advocate) This Criminal Appeal is filed under Section 378(4) Cr.P.C praying to set aside the order dated 26.11.2015 passed by the C/c. XX Additional Chief Metropolitan Magistrate, Bengaluru in C.C.No.22506/2014 acquitting the respondent/accused for the offence punishable under Section 138 of Negotiable Instruments Act.
This Criminal Appeal coming on for Orders this day, the Court delivered the following:-
JUDGMENT Heard the learned counsel appearing for the appellant and the respondent.
2. The present appeal has been preferred by the appellant-complainant challenging the order dated 26.11.2015 passed by XX Additional Chief Metropolitan Magistrate, Bengaluru, in CC No.22506/2014.
3. It is the case of the complainant that accused and complainant were acquainted with each other and they entered into a business transaction and in settlement of the said business transaction accused has issued four cheques for a total sum of Rs.12,50,000/-, when the appellant-complainant presented the said cheques, they have been returned with a shara ‘insufficient funds’ and to that effect, return memos dated 24.9.2013 and 25.9.2013 were issued by the Bank Authorities. Thereafter, the legal notice was issued to the respondent-accused. Though notice was served on the accused, neither he gave reply to the notice nor return the amount, as such he filed the complaint.
4. The learned Magistrate after recording the sworn statement, took the cognizance and issued the summons. In spite of summons the accused did not appear, as such he issued NBW and when the matter was posted for furnishing process, the complaint came to be dismissed.
5. It is the submission of the learned counsel for the appellant that the said case was called by the in-charge Court and the impugned order has been passed hurriedly. It is his further submission that as on the day the learned counsel appearing for the complainant was under the impression that the said case will not be called before the in-charge Court and he was also not keeping well. It is his further submission that the Presiding Officer of the concerned Court was on leave and as such he did not appear before the in-charge Court. Without fault of the learned counsel and the complainant the said order has been passed.
6. Per contra, the learned counsel for the respondent submits that no documents have been produced by the learned counsel to show that he was not keeping well, but actually he was engaged in the Sessions Court and has fully conducted the case, the absence of the counsel was deliberate and intentional and as such he prays that there are no good grounds to restore the complaint.
7. I have carefully and cautiously gone through the impugned order and the submissions made by the learned counsel appearing for the parties.
8. It is not in dispute that the learned Judge of XIII Additional Chief Metropolitan Magistrate was on leave and case was called out before the XX Additional Chief Metropolitan Magistrate Court. On that day, the case was called out, the complainant and the counsel were absent and no PF has been produced and as such the complaint came to be dismissed. But, when the concurrent charge has been given to the Court, at that time no doubt the Court is having full power to pass any order, usually as and when the Court is on leave, then under such circumstances, the cases will be adjourned to next day and no further proceedings will be taken. In that light, the counsel might have remained absent and the Court which is having concurrent charge, at-least it could have given one more opportunity to appear before the regular Court without passing the impugned order hurriedly. In that light, I am of the considered opinion that the said order requires to be set aside and matter may be restored to its original file.
9. In that light, the appeal is allowed and the order passed by XX Additional Chief Metropolitan Magistrate, Bengaluru, in C.C.No.22506/2014 dated 26.11.2015 is set aside and the matter is remitted back to the Court below with a direction to give full opportunity to both the parties and thereafter to dispose of the case in accordance with law.
Since both the parties are appearing before this Court, they are hereby directed to appear before the learned Magistrate without further notice on 16.1.2020.
Sd/- JUDGE *AP/-