Allowed

Mrs. M.Sowbhagya v. Mr.v.T.Srinivasan

Karnataka HC25 Nov 2020CRL.A/574/2017

Case brief

AI extract

What is this about?

The High Court allowed the criminal appeal against the dismissal of a complaint for cheque bouncing. It set aside the lower court order for failure to take proper steps regarding summons execution and remanded the case for fresh disposal after giving the complainant an opportunity to proceed.

What did the court decide?

Complaint restored to file and matter remanded to trial court for fresh disposal after giving the complainant an opportunity to take further steps.

Mrs. M.Sowbhagya Vs Mr.v.T.Srinivasan — 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.574/2017

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BETWEEN:

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MRS. M.SOWBHAGYA WIFE OF MR.THIMMEGOWDA, MAJOR, R/AT No.1134/72, POORNAPRAGNA LAYOUT, UTTARAHALLI, BANGALORE REPRESENTED HEREIN HER POWER OF ATTORNEY HOLDER MR. PRASHANTH KUMAR B.S. ..APPELLANT

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(BY SRI JACOB ALEXANDER, FOR SRI ARUN KUMAR K, ADVOCATE)

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AND:

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MR.V.T.SRINIVASAN MAJOR, FATHER’S NAME UNKNOWN TO THE COMPLAINANT, PROPRIETOR OF SRI LAKSHMI VENKATESHWARA TRADERS & TRANSPORTERS, AT NO.3/331,R.V.PALEM,TADPATRI, ANANTPUR DISTRICT ANDHRA PRADESH-515 411. ..RESPONDENT

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(BY SRI BHARATH KUMAR V, ADVOCATE – ABSENT)

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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4) CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 08.02.2017 PASSED BY THE XXIII A.C.M.M., BENGALURU IN C.C.No.29856/2010 – ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 138 OF THE NEGOTIABLE INSTRUMENTS ACT.

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THIS CRIMINAL APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT THROUGH VIDEO CONFERENCE AT BENGALURU DELIVERED THE FOLLOWING:

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JUDGMENT

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With the consent of the learned counsel

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appearing for the appellant, appeal is taken up for final disposal.

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Appeal is directed against the order dated 08.02.2017 passed in C.C.No.29856/2010 by the XXIII Additional CMM, Bengaluru, wherein complaint came to be dismissed for not taking proper steps. Aggrieved by the said order complainant has come in appeal.

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3. 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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The substance of the case is accused is the proprietor of business run under the name and style of Sri.Lakshmi Venkateswara Traders and Transporters engaged in the business of supplying steel and cement.

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Appellant-complainant was constructing her residence and approached the accused for supply of 33 tonnes of steel that was required by the complainant. As required by accused, complainant paid a sum of Rs.14,85,000/- as advance towards cost of steel to be supplied by the accused. The respondent-accused issued a receipt dated 22.07.2008 at the time of receiving the said advance.

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Accused failed to supply steel as promised. Accused addressed a letter through his advocate stating that the lorry carrying the steel that was ordered by the complainant had met with an accident and requested for some time to deliver the steel. The Complainant made several requests and demand for supply of steel and accused wrote another letter seeking 20 to 30 days to supply steel and finally he did not supply. After several reminders from the complainant, accused pleaded inability to supply the steel and instead issued two cheques bearing Nos.2974 and 2975 for Rs.7,00,000/- and Rs.7,85,000/- respectively drawn on Tadpatri Co-operative Town Bank Ltd., Tadpatri towards refund of advance paid by the complainant. On presentation of cheques they came to be dishonoured with an endorsement “Funds Insufficient”. Finally complaint was filed after completing legal formalities. Cognizance was taken

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and case came to be registered in

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C.C.No.29856/2010. It is seen that the date of complaint is 25.09.2009. However accused did not place appearance and complainant has taken steps to accused promptly and regularly. Accused was again absent and non-bailable warrant issued in this connection was not executed. Over the absence of the accused trial court has dismissed complaint for not taking steps. Order of dismissal dated 08.02.2017 is as under:

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“Complainant absent. Accused absent. Complainant counsel filed memo stating that, accused is resident of Ananthpura District, Andra Pradesh. He paid P.F. Complainant has not mentioned the address of accused in P.F. and also complainant not provided the address of accused in the memo.

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Complaint is filed on 25.09.2009. Sworn Statement is recorded and summons was

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ordered to be issued on 21.06.2009. Since 21.06.2010 summons is regularly issued for 35 times. Order sheet discloses that, complainant has remained absent on all the dates. Complainant has not taken proper steps till today. Hence complaint is dismissed for not taking proper steps.”

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Learned counsel for appellant submits that no opportunity was given for complainant to take further steps and case is dismissed. Learned counsel submits that he has a good case on merits.

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It is necessary to make the Presiding Officer to know that non-execution of warrant was by the police and complainant has been regularly taking steps. Trial court should have looked into the procedure to be followed in such an event instead gone to dismiss the complaint for not taking steps. Regard being had to the fact because of the steps taken only warrant was issued. If the complainant was not knowing

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address of the accused, trial court could have directed concerned police to ascertain the address.

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In the ends of principles of natural justice complainant requests for an opportunity. Order dated 08.02.2017 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 08.02.2017 passed in C.C.No.29856/2010 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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Parties are directed to appear before the trial court on 04.01.2021.

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Sd/-

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JUDGE

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SBN

Mrs. M.Sowbhagya v. Mr.v.T.Srinivasan

Case brief

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Mrs. M.Sowbhagya v. Mr.v.T.Srinivasan

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