Allowed

Sri. Ganesh Reddy v. Sri. Ravi.L

Karnataka HC1 Dec 2020CRL.A/2136/2016

Case brief

AI extract

What is this about?

In a cheque dishonour matter, the High Court set aside the trial court's order dismissing the complaint. It held that the trial court erred in dismissing the case without giving the complainant a full opportunity to establish proper service of the notice, although postal verification was pending at the time of the trial court decision.

What did the court decide?

Order dated 03.11.2016 set aside; complaint restored to file and matter remanded to trial court for fresh disposal.

Sri. Ganesh Reddy Vs Sri. Ravi.L — Cheque Dishonour | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 1^ST DAY OF DECEMBER, 2020

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BEFORE

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THE HON’BLE MR. JUSTICE N.K.SUDHINDRARAO

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CRIMINAL APPEAL No.2136/2016

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BETWEEN:

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SRI GANESH REDDY S/O NAGAPPA REDDY AGED ABOUT 44 YEARS RESIDING AT DEVARABISANAHALLI SHANIMAHTHMA TEMPLE ROAD, NEAR BRIGHT HIGH SCHOOL OUTER RING ROAD, BENGALURU-560 037 ..APPELLANT

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(BY SRI ANNAIAH C.V., ADVOCATE)

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AND:

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SRI RAVI L. S/O SRI LAKSHAMAIAH AGED ABOUT 30 YEARS RESIDING AT KADJAKKANAHALLI VILLAGE INDLAVADI POST, JIGANI HOBLI, ANEKAL TALUK, BENGALURU DISTRICT -560 105 ..RESPONDENT

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(SERVED)

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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4) CR.P.C. PRAYING TO SET ASIDE THE ORDER DATED 03.11.2016 IN P.C.R.No.10305/2016 PASSED BY THE XIX ACMM, BANGALORE AND RESTORE THE COMPLAINT AND PERMIT THE APPELLANT TO PROCEED WITH THE AFORESAID CASE IN THE COURT BELOW.

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THIS CRIMINAL APPEAL COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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Appeal is directed against the order dated 03.11.2016 passed in P.C.R.No.10305/2016 by the

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XIX Additional CMM, Bengaluru, wherein complaint came to be dismissed. Aggrieved by the said order complainant has come in appeal.

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In order to avoid confusion and overlapping parties are referred in accordance with their ranks as stood before the trial court.

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Facts of the complaint are that accused being a family friend of the complainant approached

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complainant for financial assistance and complainant lent a sum of Rs.2,75,000/- to the accused on the assurance of prompt repayment of the same by first week of July, 2016. After completion of stipulated period accused did not pay the said amount and after several requests and demand by complainant, accused issued a cheque bearing No.222823 dated 15.07.2016 drawn on Canara Bank, Jigani Branch, for a sum of Rs.2,75,000/-. However on presentation through complainant’s bankers the cheque was dishonoured for the reason “Funds insufficient” and bank memo is dated 04.08.2016. Complainant got issued legal notice dated 24.08.2016 which was delivered to accused but the acknowledgement was not yet received. After necessary formalities, complaint was filed on 29.09.2016 and case came to be registered in P.C.R.No.10305/2016.

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4. Learned counsel for appellant-complainant

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submits that notice was duly issued to the accused on 24.08.2016. Notice is said to have been delivered to

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accused but the acknowledgement was yet to be received. Meanwhile correspondence with the postal authorities was in progress and same was followed by postal complaint on 28.09.2016. Complaint was filed on 29.09.2016 so that limitation factor did not apply

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to the case on hand. The court did not accommodate and the proceedings are as under:

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29.09.2016 – Complainant present and filed 5 documents.

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Complainant present and filed his affidavit by way of oral sworn statement and examined.

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Perused the records. Complainant has not furnished documents for having served the notice to the accused issued U/s 138(b) of NI Act. Hence, Complainant is directed to furnish document.

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Call on by : 13.10.2016.

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13.01.2016 Complainant absent. Accused absent.

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No representation. Hence for compliance by 21.10.2016.

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21.10.2016 Complainant absent. Accused absent. Arguments and orders by 03.11.2016.

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03.11.2016 The complainant has filed this complaint against accused u/s 200 of Cr.P.C. for the offence punishable U/s.138 of N.I.Act.

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Perused the complaint and the original documents filed by the Complainant before this court. The complainant has also given his sworn statement before this court. Perused sworn statement and also original document filed by the complainant along with complaint averments.

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Admittedly, the complainant in his complaint averments has not stated when exactly the notice issued by him u/Sec.138(b) of N.I.Act was served on this accused and from which date the cause of action to file this complaint is started running and when he has filed this complaint before this court. The complainant has not even chosen to produce the documents before this court to convince the court that the notice issued by him on 24.08.2016 was duly served upon the accused. As I have discussed supra, the complainant has not stated anything about the service of notice to this accused nor he has placed

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any documents before this court to prove the mandatory requirement of Sec.138 of N.I. Act. In spite of giving sufficient opportunities to this complainant to produce the documents before this court for having served the notice to this accused to calculate the period of limitation to file this complaint, the complainant has not chose to comply the directions issued by this court by producing the documents before this court. There is nothing on record to come to a conclusion that this complainant has followed all the mandatory requirement of Sec.138 of N.I. Act and he filed this complaint well within the period of limitation after service of notice to this accused.

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Perused affidavit of the complainant and the documents produced. On perusal of all these materials, there is no sufficient grounds to proceed against the accused for the offence u/s.138 of N.I. Act, by registering the case in Criminal Register No.3 and to issue summons to the accused. Original documents are returned to the Counsel for the complainant. Accordingly, I proceed to pass the following:

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ORDER

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Acting u/Sec.203 of Cr.P.C., complaint is dismissed.

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5. Learned counsel for appellant submits that

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opportunity was not given to establish his bonafides and at the presentation level before the appearance of the accused it came to be dismissed.

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It is seen that granting of opportunity when there is a written contention regarding issue of notice it should have been considered. More over trial Judge also should have borne in mind regarding limitation factor wherein right of complaint for the offence punishable under Section 138 of the Negotiable Instruments Act gets lapsed. Sufficient opportunity should have been given to the complainant with regard to producing the document or necessary records for having made efforts and hurriedly proceeded to dismiss the complainant as per the order stated above.

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Learned counsel submitted that after filing the appeal he received communication or endorsement/letter from postal authority that notice was served on the accused on 02.09.2016. If the acknowledgement or other document is not produced at the time of disposal that too after giving opportunity, the matter would have been different. Further more, the process was under investigation by the postal department which was not within the control of complainant.

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The concept of principles of natural justice must be represented in all genuineness and circumstances more particularly for an irregularity which is 100% beyond the control of the complainant.

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In the circumstances. I find the trial court seriously erred in dismissing the complaint without giving full and complete opportunity to the

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complainant. Order dated 03.11.2016 is liable to be

set aside.

Hence the following:

ORDER

Appeal is allowed. Order dated 03.11.2016

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passed in P.C.R.No.10305/2016 by XIX ACMM, Bengaluru, is set aside. Complaint is restored to file. Matter is remanded to trial court for fresh disposal in accordance with law from the stage where it was left over.

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Complainant shall appear before the trial court on 04.01.2021 along with documents and case shall be called on that day for further proceedings as per law.

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Sd/-

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JUDGE

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SBN

Sri. Ganesh Reddy v. Sri. Ravi.L

Case brief

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Sri. Ganesh Reddy v. Sri. Ravi.L

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