IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL APPEAL NO.35 OF 2018 BETWEEN:
M/s Surya Agro Industries A Partnership Firm Represented by it’s one of the partner Sri. Rajkumar Mishra S/o Late Kamal Sankar Mishra Aged about 38 years, Address: M/s Surya Agro Industries, Head Office, B.T.Compound, K.R.Road, Davanagere-560 001.
(By Sri.Suresh R, Advocate) AND:
M/s Renukamba Traders Dealer of Pesticides and Seeds Represented by its Proprietor/Owner/Partner, C.K.Basavaraja, S/o Chickkavalli Kallappa, Aged 45 years, M/s Renukamba Traders, Dealer of Pesticides and Seeds, Opposite bus Stand Circle, Soraba-577 429 Shivamogga District. (Respondent served).
...Appellant ...Respondent This Criminal Appeal is filed under Section 378(4) of Cr.P.C., praying to set aside the order of acquittal dated 01.10.2016 passed by the JMFC-III Court, Davanagere in C.C.No.609/2016 acquitting the respondent-accused for the offence punishable under Section 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 Heard the learned counsel for appellant on I.A.No.1/2018. The said application has been filed under Section 5 of Limitation Act, seeking to condone the delay of 24 days in filing the appeal, which is also accompanied with the affidavit.
The respondent has remained absent.
By accepting the cause shown, the delay of 24 days in filing the appeal is condoned by allowing I.A.No.1/2018.
Heard learned counsel for the appellant on IA.No.2/2018 on special leave.
By accepting the cause shown in the accompanying affidavit, I.A.No.2/2018 is allowed and special leave is granted.
2. Though this case is posted for hearing on interlocutory applications, with the consent of learned counsel for the appellant, the same is taken up for final disposal.
3. The present appeal has been filed by the appellant-complainant being aggrieved by the judgment and order of III JMFC, Davangere, in C.C.No.609/2016 dated 01.10.2016.
4. I have heard the learned counsel for the appellant. Though notice is served to respondent- accused, he has remained absent, there is no representation.
5. The facts leading to the case are that the appellant-complainant is a wholesale dealer of pesticides and seeds and is running the business in the name and style M/s Surya Agro Industries. The accused is the customer of the complainant industry/firm and he was a retail seller of the pesticides and seeds in the name and style as M/s Renukamba Traders. The accused purchased the pesticides from the complainant-Firm in the year 2010 and 2013 and an amount of Rs.3,40,000/- was due and in order to discharge the said debt, he issued a cheque bearing No.278063 dated 20.03.2014, for a sum of Rs.3,40,000/- drawn on the Shimogga District Co- operative Central Bank Limited, Soraba Branch. The said cheque was returned unpaid on 28.03.2014 for the reason “Funds Insufficient”. Thereafter, a legal notice was also issued and the said notice returned with postal shara as “Not claimed, Returned to Sender” and accused has not replied to the said notice and has not paid and as such, a private complaint was filed under Section 138 of Negotiable Instruments Act 1881.
6. It is the submission of the learned counsel for appellant-complainant that the trial Court without giving an opportunity to the complainant to produce the RPAD covers and without giving any opportunity has dismissed the case and has wrongly acquitted the accused. It is the further submission that the Court below has used the short cut methods for dismissal of the case. It is submitted that the principles of natural justice have not been followed by the Court below. On these grounds, he prays to allow the appeal and set aside the impugned order and matter may be remanded back to the Court below by giving fresh opportunity to the complainant.
7. I have carefully and cautiously gone through the certified copy of the order sheet, which has been made available. A private complaint was filed on 04.02.2015. Thereafter, a case was registered in PCR No.21/2015 and the case was posted for orders. After several adjournments, the order sheet discloses that on 27.06.2016, notice has been issued to the accused. By registering a case, subsequently, the case was posted for recording the plea and on 26.07.2016, again the case was posted for recording the plea as well as furnishing of the RPAD covers. On 03.09.2016 also no PF was furnished and on 01.10.2016 impugned order came to be passed. The trial Court order discloses that no full opportunity has been given to the complainant to furnish the PF and to take steps to serve notice on the accused. Even the order sheet itself has been wrongly framed. The said case would have been proceeded only when the accused had appeared before the Court and thereafter, plea was recorded. Without following the procedure, the impugned order has been passed.
8. Be that as it may, the Courts must see that cases are decided as far as possible on merits of the case, no short cut methods should be used to dispose of the cases on technical grounds, when PF has not been paid, under such circumstances, one more opportunity has to be given to furnish PF and Court ought to have issued notice to respondent-accused. Under such facts and circumstances, in order to give one more opportunity to the complainant, I feel that the impugned order requires to be set aside.
9. Accordingly, appeal is allowed and the impugned judgment dated 01.10.2016 passed by JMFC, Davangere, is set aside and the matter is remanded back to the Court below with a direction to give an opportunity to complainant to serve notice to accused and thereafter, to dispose of the case in accordance with law.
Sd/- JUDGE ag