Allowed

The Managing Director v. Rasul S/O Rasu Shekh

Karnataka HC19 Oct 2022CRL.A/100082/2020

Case brief

AI extract

What is this about?

Criminal appeal by complainant against dismissal of Section 138 NI Act complaint. Trial Court held failure to produce property extract was fatal. High Court allowed appeal, set aside dismissal, and directed reissue of summons/proclamation with one more chance.

What did the court decide?

The order dated 30.10.2019 dismissing the complaint was set aside. The trial court was directed to restore the matter and proceed. The complainant must appear on 15.11.2022.

The Managing Director Vs Rasul S/O Rasu Shekh — Cheque Dishonour | Karnataka HC (2022)

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CRL.A No. 100082 of 2020

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 19^TH DAY OF OCTOBER, 2022

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BEFORE

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THE HON'BLE MR JUSTICE S.RACHAIAH

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CRIMINAL APPEAL NO. 100082 OF 2020

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BETWEEN:

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THE MANAGING DIRECTOR RAITAR SAHAKARI SAKKARE KARKHANE NIYAMIT, RANNANAGAR, TIMMAPUR, TQ: MUDHOL, DIST: BAGALKOTE – 587 101. REP. BY ASHOK S/O VENKAPPA MORAB, AGE: 59 YEARS, OCC: MANAGING DIRECTOR, R/O: RANNANAGAR, TIMMAPUR, TQ: MUDHOL, DIST: BAGALKOTE – 587 101. (BY SRI SRINIVAS B. NAIK, ADVOCATE)

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…APPELLANT

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AND:

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Digitally signed by SUJATA SUBHASHPAMMAR Location: HIGH COURT OF KARNATAKA, DHARWAD BENCH, DHARWAD.

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RASUL S/O RASU SHEKH AGE: MAJOR, OCC: CONTRACTOR, R/O: AT POST NITAROD (HANUMAN MANDIR TO ZP PRA SHA DA PU), TQ: MAJALAGANVA, DIST: BEED, STATE MAHARASHTRA.

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…RESPONDENT

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THIS CRIMINAL APPEAL IS FILED U/S 378 (4) OF CR.P.C., PRAYING TO SET ASIDE ORDER OF DISMISSAL OF COMPLAINT FOR NON-PROSECUTION DATED 30/10/2019 IN CC NO.303/2014 ON THE FILE OF PRL. SENIOR CIVIL JUDGE AND JMFC, MUDHOL, REGISTERED FOR THE OFFENCES PUNISHABLE UNDER SECTION 138 OF NEGOTIABLE INSTRUMENTS ACT, AND RESTORE THE COMPLAINT ON ITS FILE.

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THIS CRIMINAL APPEAL COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING.

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CRL.A No. 100082 of 2020

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JUDGMENT

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Today the matter is listed for admission.

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The learned counsel for the appellant submits

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that since the respondent-accused did not appear before the Trial Court. The issuance of the notice may be dispensed with in order to dispose the appeal.

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Submission is placed on record.

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Notice to the respondent is dispensed with.

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On perusal of the order sheet, it appear that the

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Trial Court after taking cognizance, issued summons to the accused. Thereafter, the accused remained absent. Not appeared before the Court. Then, the Trial Court issued NBW to the accused on 23.12.2014, the same has not been executed to the accused. Therefore, the counsel for the complainant filed an application to issue proclamation

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on 05.09.2019. The matter again posted for the same

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stage on 30.10.2019. The Trial Court passed the following order:

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CRL.A No. 100082 of 2020

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“Complainant and his counsel called out absent. There is no representation on his behalf.

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Again case is called at 1.30pm, 3.30.pm and 4.25pm, 4.40pm, 5.15pm. Complainant and his counsel called out absent. There is no representation on his behalf.

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The complainant has filed petition U/sec. 82 of Cr.P.C on 05.09.2019 without producing recent property extract of the accused in order to issue proclamation and attachment warrant. The complainant has not produced recent property extract till today.

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This case is pending since from 2014 and the complainant has taken issuance of NBW against the accused since form 23.12.2014 till 05.09.2019 but the accused was not secured after executing NBW. After lapse of long period, the complainant has filed petition U/sec. 82 of Cr.P.C., on 05.09.2019 without producing recent property extract. As the matter is of the year 2014, the same has to be disposed of as early as possible. Today the case is called many times in the open court but the complainant and his counsel remained absent.

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The complainant has not taken further steps or he has not chosen to produce the recent property extract of the accused. The complainant except filing PF memo has not assisted the police to secure the

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CRL.A No. 100082 of 2020

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accused. No grounds made out by the complainant to grant another date.

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Since the complainant and his counsel remained absent, there is no need to grant another date accordingly the complaint is dismissed for non prosecution.”

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On perusal of the above proceedings of the Trial Court, it appears that, sufficient efforts have been made by the complainant to secure the accused. However, the complainant failed to secure him. The accused in spite of having issued NBW, he did not appear before the Trial Court.

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It is further submitted by the learned counsel

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for the appellant is that, the Trial Court insisted the property extract of the accused to issue proclamation.

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After considering the inability of the complainant in producing the property extract of the accused, the Trial Court dismissed the complaint.

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CRL.A No. 100082 of 2020

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Now, the learned counsel for the appellant

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submits that, the appellant is ready to produce the property extract of the accused.

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Considering the submission made by the learned counsel for the appellant and also the efforts made by the complainant to secure the presence of the accused, it is appropriate to grant one more opportunity to the complainant to take necessary steps for the purpose of issuance of proclamation. Hence, the order passed by the Trial Court requires to be set aside.

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In the light of the above observations, I

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proceed to pass the following:

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ORDER

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i) The appeal is allowed.

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ii) The order dated 30.10.2019 in C.C.No.303/2014 on the file of the Prl. Senior Civil Judge and JMFC, Mudhol is set aside.

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iii) The Trial Court is directed to restore C.C.No.303/2014 in the same stage and

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CRL.A No. 100082 of 2020

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proceed with the matter in accordance with law.

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iv) The complainant shall appear before the Trial Court on 15.11.2022 and proceed with the matter without any undue delay or any other

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reasons.

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Sd/JUDGE

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SSP List No.: 1 Sl No.: 12

The Managing Director v. Rasul S/O Rasu Shekh

Case brief

What is this about?

What did the court decide?

The Managing Director v. Rasul S/O Rasu Shekh

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

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