Allowed

M/S Mokkan Marketing v. L.R. Associates

Karnataka HC27 Oct 2022CRL.A/1310/2015

Case brief

AI extract

What is this about?

In an appeal under Section 389(4) Cr.P.C. against dismissal of a cheque-bounce complaint for default, the High Court allowed the appeal, set aside the impugned order, and remanded the matter to the trial court to enable prosecution, dispensing with hearing the respondent.

What did the court decide?

Impugned order dated 16.09.2015 set aside; complaint restored to file; notice held unnecessary; appellant to appear in trial court on 21.11.2022; deposited litigation costs of Rs.5,000 permitted to be

M/S Mokkan Marketing Vs L.R. Associates — Cheque Dishonour | Karnataka HC (2022)

¶1

¶2

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶3

DATED THIS THE 27^TH DAY OF OCTOBER, 2022 BEFORE

¶4

THE HON'BLE MS.JUSTICE J.M.KHAZI

¶5

CRIMINAL APPEAL NO.1310 OF 2015

¶6

BETWEEN:

¶7

M/s. MOKKAN MARKETING A PARTNERSHIP FIRM, NO.1/5, 2^ND FLOOR, CUNNINGHAM ROAD, BANGALORE - 560 052. REPRESENTED BY ITS AUTHORISED SIGNATORY, MR.YOUNUS SHARIFF.

¶8

...COMPLAINANT/APPELLANT

¶9

(BY SRI. PRADEEP SOMAIAH, ADVOCATE) AND

¶10

L.R. ASSOCIATES A PROPRIETORSHIP CONCERN, HAVING ITS OFFICE AT: NO.15, GROUND FLOOR, "B" STREET, BALAPPA GARDEN, TASKER TOWN, BANGALORE - 560 051. BY ITS SOLE PROPRIETOR, MR.SHAIK ABDUL RAUF

¶11

......ACCUSED/RESPONDENT

¶12

THIS CRL.A. FILED U/S.389(4) OF CR.P.C BY THE ADVOCATE FOR THE APPELLANT PRAYING THAT THIS HON'BLE COURT MAY BE PLEASED TO i) SET ASIDE THE ORDER DATED 16.09.2015, PASSED IN C.C.NO.34432 OF 2011, ON THE FILE OF HON'BLE COURT OF XXI ACMM & XXIII ASCJ, BANGALORE AND RESTORE THE COMPLAINT IN C.C.NO.34432 OF 2011; ii) ANY OTHER ORDERS THAT THIS HON'BLE COURT MAY DEEM FIT IN THE CASE IN THE

¶13

¶14

INTEREST OF JUSTICE OR OTHERWISE THE APPELLANT WILL BE PUT TO IRREPARABLE INJURY AND LOSS.

¶15

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

¶16

J U D G M E N T

¶17

Being aggrieved by dismissal for default of

¶18

complaint filed by him for the offence punishable under Section 138 of N.I.Act, complainant has come up with this appeal.

¶19

For the sake of convenience the parties are referred to by their rank before the trial Court.

¶20

It is the case of the complainant that it is a partnership firm. At the request of accused, a Proprietorship concern, his services were engaged in mid 2009 to promote complainant's business on remuneration solely based on incentive in the form of commission. Accordingly, accused started promoting the business of complainant. At his request, complainant financially supported the accused and by January 2011, accused was due in a sum of Rs.8,00,942/-. Towards discharge of the said liability, accused issued 14 post dated cheques

¶21

¶22

for a total sum of Rs.8,00,942/-. Out of them complainant presented three cheques for a sum of Rs.2,37,800/for encashment. The same was

¶23

dishounoured on the ground of insufficiency of funds resulting in filing of the complaint before XV ACMM, Bengaluru. After taking cognizance, suit summons was ordered to be issued to the accused.

¶24

Vide Notification dated 30.05.2014, this case was transferred to the Court of XLII ACMM, Bengaluru. Once again vide order of the CJM, the said complaint was transferred to XXI ACMM. Complainant was ordered to take steps and on 16.09.2015, the trial Court dismissed the complaint for non-prosecution. Against the said order the present appeal is filed, contending that both complainant and his counsel were not aware of the date and previous two dates and as such they could not be present before the Court to take steps.

¶25

Perusal of the order sheet indicates that the complaint came to be dismissed by the trial Court before the appearance of accused. Learned counsel for

¶26

¶27

appellant/complainant submitted that in the light of transfer of the complaint from one Court to the other, complainant as well as his counsel were not aware of the hearing date and since the complaint came to be dismissed even before the appearance of the accused, there is no need to hear the accused/respondent and relying upon the decision of the co-ordinate Bench of this Court in Crl.A.No.1020/2015, the learned counsel for appellant/complainant would submit that appeal may be allowed and the matter may be remanded to the trial Court to enable complainant to prosecute the complaint.

¶28

As evident from the order sheet, initially the complaint was made over to the Court of XV ACMM, Bengaluru. Vide order dated 30.05.2014, it was made out to the Court of XLII ACMM. Once again vide order dated 29.07.2015, it was transferred to XXI ACMM Court. From the order sheet, it is not clear whether notice was duly served on the complainant. In the absence of the same, the contention of the complainant that he and his counsel were not aware of the hearing date is required to be accepted.

¶29

¶30

Since the complaint came to be dismissed

¶31

even before the appearance of accused, no prejudice would be caused if the matter is remanded without hearing the respondent/accused and accordingly, notice to respondent is dispensed with. Since the complaint was dismissed for default, I am of the considered opinion that complainant ought to be given an opportunity to prosecute the complaint.

¶32

Vide order dated 18.02.2016,

¶33

appellant/complainant was directed to deposit litigation cost of Rs.5,000/- before this Court and accordingly, he has deposited the same. Learned counsel for appellant/complainant submits that he may be permitted to withdraw the same, as accused failed to appear before this Court and he did not incur any litigation expenses.

¶34

In the result, I proceed to pass the following:

¶35

ORDER

¶36

(i) Appeal is allowed. The order dated 16.09.2015 is set aside. Complaint is restored to the file.

¶37

¶38

(ii) Appellant is directed to appear before the trial Court on 21.11.2022 without waiting for notice from it.

¶39

(iii) Appellant is permitted to withdraw Rs.5,000/deposited by him before this Court vide order dated 18.02.2016.

¶40

Sd/-

¶41

JUDGE

¶42

RR/LL

M/S Mokkan Marketing v. L.R. Associates

Case brief

What is this about?

What did the court decide?

M/S Mokkan Marketing v. L.R. Associates

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Narayanaswamy R Vs Hanumantharayappa

Rani S Vs Divisional Controller

Mr Ramakrishna Vs M/S Shivaganga Investments (P) Ltd.

Sri Shivananda Naik Vs Jagan a S

Sri. Mahadev Vs Smt. Umadevi

Mr. a. Rathnam Vs Mr. S. K. Ramesh