Allowed

Sri Girish v. Sri Anand Y C

Karnataka HC25 Nov 2020CRL.A/440/2017

Case brief

AI extract

What is this about?

In a cheque bounce case, the High Court allowed an appeal dismissing the trial court's order of dismissal for non-prosecution. It held that the trial court should have adjourned instead of discarding evidence due to the complainant's absence caused by a hospitalization of his wife for which medical records were inadvertently not produced.

What did the court decide?

Order dated 16.01.2017 set aside; complaint restored to file; matter remanded to trial court for fresh disposal; parties to appear on 04.01.2021.

Sri Girish Vs Sri Anand Y C — Cheque Dishonour | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 25^TH DAY OF NOVEMBER, 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.440/2017

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BETWEEN:

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SRI GIRISH S/O CHOWDEGOWDA, AGED ABOUT 33 YEARS, RESIDING AT No.67/A-1, 7^TH MAIN, THIMAIYA ROAD, SHIVANAGAR, NEAR PUSHPANJALI THEATRE, BANGALORE - 560 010.

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..APPELLANT

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(BY SRI KARIGOWDA HENCHINAMANE S., ADVOCATE)

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AND:

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SRI ANAND Y C S/O CHINAPPA, AGED ABOUT 36 YEARS, R/AT KRISHNAPPA BUILDING, BEHIND MANJUNATHA BAR, GANDINAGAR, YALAHANKA, BANGALORE - 560 064.

..RESPONDENT

(SERVED)

THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4) CR.P.C. PRAYING TO SET ASIDE THE ORDER OF DISMISSAL FOR NON-PROSECUTION AND DEFAULT DATED 16.01.2017 IN C.C.No.21748/2016 PASSED BY THE XXII ACMM, BANGALORE AND RESTORE THE COMPLAINT IN C.C.No.21748/2016 TO THE XXII ACMM, BANGALORE TO ITS ORIGINAL STAGE FOR TRIAL.

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

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JUDGMENT

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With the consent of the learned counsel appearing for the appellant, appeal is taken up for final disposal.

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Appeal is directed against the order dated 16.01.2017 passed in C.C.No.21748/2016 by the XXII Additional CMM, Bengaluru, wherein complaint came to be dismissed for non-prosecution and for default. Aggrieved by the said order complainant has come in appeal.

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In order to avoid confusion and overlapping

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parties are referred in accordance with their ranks as stood before the trial court.

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Facts of the complaint is that complainant lent a sum of Rs.2,00,000/- to the accused on the assurance of prompt repayment of the same and on several requests and demand, accused issued a cheque bearing No.984602 560052036 10 dated 29.06.2016 drawn on Karnataka Bank, R.T.Nagar Branch, Bengaluru-560 032 for a sum of Rs.2,00,000/-. However on presentation through complainant’s bankers the cheque was dishonoured for the reason “Funds insufficient” and bank memo is dated 02.07.2016. Complainant got issued legal notice dated 01.08.2016 which was unclaimed after the intimation was duly delivered on the accused. After necessary formalities, complaint was filed and

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cognizance was taken and case came to be registered in C.C.No.21748/2016. Accused placed his appearance before the trial court. Matter was posted for complainant’s examination-in-chief on 23.12.2016 wherein complainant filed his examination-in-chief by way of affidavit and subsequently posted for further examination for the purpose of marking documents on 03.01.2017. Complainant informed about his visit to Shabrimala and sought time court imposed fine of Rs.200/and adjourned to 10.01.2017. On 10.01.2017 again sought adjournment explaining the reason and court by imposing fine Rs.1,000/adjourned the matter to 16.01.2017 for further chief examination of complainant and on that day complainant while preparing to go for court, wife of complainant fell ill. As such complainant took his wife to Anugra hospital, Basaveshwaranagar. In the circumstances requested the counsel to file necessary

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application. However, trial court noted the absence and not producing medical records in support of the application and dismissed the complaint for nonprosecution and default.

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Learned counsel for appellant submits that when the complainant was prosecuting the matter there was no any intention of delaying the proceedings. It is seen on the first occasion exemption sought on 03.01.2017 and second exemption is on 10.01.2017 wherein adjournment was granted subject to payment of fine of Rs.1,000/and order sheet dated 16.01.2017 is as under:

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Counsel present and deposited fine PW-1 absent. Accused absent. EA filed allowed. PW-1. call out later. Case called at 3.07 PM Complainant continuously absent. Since, from 23.07.2016, 03.01.2017, 10.01.2017, 16.01.2017 i.e., today earlier the counsel filed application U/s 309 Cr.PC to adjourn

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this case the same was allowed with fine of Rs.1,000/- and today also the complainant absent. The counsel submits that the complainant wife has been hospitalized at Anugra Hospital, Basaveshwaranagar. Hence, the complainant could not able appear before this court etc., but in support of this contention he has not produced hospital documents. It shows that the complainant is not interested to prosecute the case. Hence, the application U/s.309 Cr.PC is no ground, same is hereby rejected. Consequently the evidence of PW-1 is discarded. The complaint is dismissed for non-prosecution and for default.”

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Learned counsel for appellant submits that he

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has a good case on merits and if an opportunity was given he would have established the case. He would further submit that the absence was not intentional

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but due to health reasons complainant could not be present before the court.

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In the context and circumstances of the case cognizance of the case was taken, chief examination of the complainant was over and it was set down for further chief examination for marking documents. He remained absent for the reason complainant had gone to Shabrimala and on the date of dismissal complainant’s wife was not feeling well and that he took her to Anugra Hospital, Basaveshwaranagar.

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With this background the court ought to have exercised patience and adjourned the matter subject to production of medical certificate and could not have dismissed the complaint in which part chief examination is already over. In the ends of principles of natural justice, complainant requests for an

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opportunity. Order dated 16.01.2017 is liable to be set aside.

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Hence the following:

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ORDER

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Appeal is allowed. Order dated 16.01.2017

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passed in C.C.No.21748/2016 by XXII ACMM,

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Bengaluru, is set aside. Complaint is restored to file.

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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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Parties are directed to appear before the trial

court on 04.01.2021.

Sd/-

JUDGE

SBN

Sri Girish v. Sri Anand Y C

Case brief

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Sri Girish v. Sri Anand Y C

Case brief

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