Allowed

Mr Vikas T D v. Mr Thimmaiah

Karnataka HC14 Dec 2022CRL.A/1810/2022

Case brief

AI extract

What is this about?

In an appeal against the dismissal of a Section 138 complaint for default due to the accused's absence, the court allowed the appeal, set aside the impugned order, restored the complaint to the file, and remanded it to the trial court to be disposed of on merits after affording reasonable opportunity to both parties.

What did the court decide?

Impugned order dated 18.05.2022 set aside; complaint restored to file; parties directed to appear before trial court on 19.01.2023.

Mr Vikas T D Vs Mr Thimmaiah — Cheque Dishonour | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 14^TH DAY OF DECEMBER, 2022

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BEFORE

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THE HON'BLE MS.JUSTICE J.M.KHAZI CRIMINAL APPEAL NO.1810 OF 2022

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BETWEEN:

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MR VIKAS T D S/O DINESH AGED ABOUT 30 YEARS R/A BALAJI P G TAVAREKERE ROAD KORAMANGALA BENGALURU - 560 034

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...COMPLAINANT/APPELLANT

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(BY SRI. DHANUSH MENON, ADVOCATE)

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AND

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MR THIMMAIAH S/O LATE ERAPPA AGED ABOUT 43 YEARS R/A HOUSE NO.787 BHEL LAYOUT, 2^ND STAGE 20^TH CROSS, R R NAGAR BENGALURU - 560 098

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......ACCUSED/RESPONDENT

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(RESPONDENT - SERVED)

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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4) OF CR.P.C PRAYING TO a) CONSEQUENTLY ALLOW THE APPEAL AND THEREBY SET ASIDE THE ORDER DATED 18.05.2022 IN C.C.NO.4266/2019 PASSED BY THE XIX ACMM AT BANGALORE CITY FOR OFFENCES PUNISHABLE UNDER SECTION 138 OF THE NEGOTIABLE INSTRUMENTS ACT; b) PASS SUCH SUITABLE ORDER(S) AS THIS HON'BLE COURT MAY DEEM FIT, IN THE FACTS AND CIRCUMSTANCES OF THE CASE, IN THE INTEREST OF JUSTICE AND EQUITY.

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

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J U D G M E N T

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Though this appeal is posted for admission, with the

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consent of learned counsel for the parties, the same is taken up for final disposal.

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For the sake of convenience the parties are

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referred to by their rank before the trial Court.

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This appeal is by the complainant challenging the dismissal of the complaint on the ground that he has failed to take steps against the accused.

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Though duly served, respondent has remained

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absent.

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Heard and perused the record.

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It is the case of the complainant that accused

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is a four wheeler cum finance dealer. They are known to each other. Complainant approached the accused for purchase of Hyundai Verna Car. In this connection, accused received a sum of Rs.2,25,000/- by way of

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online fund transfer dated 18.01.2018, 22.01.2018 and 20.04.2018, with a promise to sanction loan for purchase of car. However, he failed to do so. When insisted upon, accused issued two cheques for a sum of Rs.1,00,000/and 1,25,000/-. When presented, the said cheques are dishonoured. After complying with all the formalities, complainant filed the complaint.

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Vide order dated 19.02.2019, the trial Court took cognizance.

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However, in spite of taking repeated steps, the presence of accused could not be secured. However, on 18.05.2022, the trial Court has dismissed the complaint for default, against which this appeal is filed.

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It is pertinent to note that in the present appeal, the notice is duly served on the respondent to the address given in the appeal memo, which is different from the one given in the complaint. It appears complainant is succeeded in securing the correct address of the accused.

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Since the case is not disposed of on merits, it

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is necessary to remand the same to the trial Court for disposal on merits in accordance with law by providing reasonable opportunity to the complainant.

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No prejudice would be caused to the accused

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as he would get an opportunity to cross-examine the complainant and his witnesses, if any. Of course accused may also lead defence evidence, if necessary. Accordingly, I proceed to pass the following:

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ORDER

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(i) Appeal is allowed. The impugned judgment and order dated 18.05.2022 is set aside. Complaint is restored to the file.

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(ii) Complainant and accused are directed to appear before the trial Court on 19.01.2023 without waiting for notice from it.

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(iii) The trial Court is directed to proceed with the matter after providing reasonable opportunity to both parties.

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(iv) Of course, if on 19.01.2023, accused fails to appear before the Court, the trial Court is at liberty to take coercive steps against him for securing his presence.

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Sd/JUDGE

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MDS

Mr Vikas T D v. Mr Thimmaiah

Case brief

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Mr Vikas T D v. Mr Thimmaiah

Case brief

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