Allowed

M/S Jyoti Enterprises v. A1 Roofings

Karnataka HC6 Dec 2021CRL.A/2/2021

Case brief

AI extract

What is this about?

The High Court allowed the Criminal Appeal against an order dismissing a Section 138 cheque dishonour complaint for non-prosecution. The court set aside the impugned order, restored the case file, and directed the complainant to appear by 17.12.2021, imposing a cost of Rs. 5,000 to ensure diligent prosecution.

What did the court decide?

Impugned order set aside; complaint restored to original file; complainant directed to appear by 17.12.2021; cost of Rs. 5,000 imposed.

M/S Jyoti Enterprises Vs A1 Roofings — Cheque Dishonour | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 6^TH DAY OF DECEMBER, 2021

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BEFORE

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THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ

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CRIMINAL APPEAL NO. 2 OF 2021

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BETWEEN:

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M/S JYOTI ENTERPRISES AT NO.88, 3^RD CROSS KAVERI LAYOUT DODDABETTAHALLI VIDYARANYAPURA POST BANGALORE-560097 REPRESENTED BY ITS PARTNER TRILOK JHA SON OF SRI. MOHAN JHA AGED ABOUT 33 YEARS

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…APPELLANT

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(BY SMT. TAHURA ANZAN, ADV. For SRI.P.FREUD RICHARD SON, ADVOCATE(PH))

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AND:

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A1 ROOFINGS NO.18, N.R.ROAD BANGALORE-560002 REPRESENTED BY ITS PROPRIETOR SANJAY GROVER

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SANJAY GROVER PROPRIETOR M/S A1 ROOFINGS NO.18, N.R.ROAD BANGALORE-560002.

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…RESPONDENTS (BY SRI. U.NAYAZ PASHA, ADV FOR R1 & R2)

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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4) CR.P.C BY THE ADVOCATE FOR THE APPELLANT/S PRAYING THAT THIS HONBLE COURT MAY BE PLEASED TO SET ASIDE THE IMPUGNED JUDGMENT DATED 29.02.2020 PASSED BY THE 18^TH ACMM, BANGALORE IN C.C.NO.19382/2014 - ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE P/U/S 138 OF N.I.ACT AND ETC.,

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

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ORDER

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This appeal is preferred by the complainant against the order dated 29.02.2020 passed in C.C.No.19382/2014 on the file of Learned XVIII Additional Chief Metropolitan Magistrate Court, Bengaluru, whereby complaint filed under Section 138 of Negotiable Instruments Act came to be dismissed for nonprosecution.

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Material on record disclose that a complaint dated 12.03.2014 was filed alleging an offence under Section 138 of Negotiable Act in respect of dishonor of a cheque issued by the accused/respondent for a sum of Rs.1,42,677/- (Rupees One Lakh Forty Two Thousand Six Hundred and Seventy Seven Only). The learned Magistrate took cognizance of the offence and posted the case for recording the statement of the complainant and his statement was recorded on 16.07.2014 and accused was summoned. On 15.12.2015 the accused appeared through an

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advocate. On two occasion, the presiding officer was on leave. Subsequently, on many occasion, complainant remained absent. Hence, having no other alternative, learned Magistrate vide order dated 29.02.2020 dismissed the complaint for non prosecution.

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It appears that on 13.12.2018, complainant filed affidavit in lieu of his examination in chief and Exs.P.1 to Ex.P.7 were marked. The case was posted for his cross-examination. On 10.01.2019, since both accused as well as the complainant were absent, the case was adjourned to 30.01.2019 and on the said date, again the accused was absent and subsequently i.e., from 12.03.2019 the complainant remained absent. Hence, the learned Magistrate dismissed the complaint for non-prosecution. Though the said order cannot be found fault with, however, considering the submission of the learned counsel for the petitioner that the complainant will tender himself for crossexamination and hereafter he will diligently prosecute his complaint, this court deems it appropriate to give him one more opportunity, to prove his case, however, by imposing cost.

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Hence the following:

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ORDER

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The appeal is allowed. The impugned order dated 29.02.2020 passed in C.C.No.19382/2014 on the file of XVIII

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Additional Chief Metropolitan Magistrate at Bengaluru is hereby set side.

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(i) The complaint shall be resorted to its original file and the learned Magistrate is directed to proceed further in accordance with law.

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(ii) The Complainant shall appear before the trial Court on or before 17.12.2021.

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(iii) He shall pay cost of Rs.5,000/- (Rupees Five Thousand Only) to the Karnataka Legal Services Authority and furnish a receipt for having paid the cost in the trial Court on the next date of hearing.

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(iv) If the trial court records are received, the same shall be sent back .

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Sd/JUDGE

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M/S Jyoti Enterprises v. A1 Roofings

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M/S Jyoti Enterprises v. A1 Roofings

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