Allowed

S Suresha v. Sathyanarayana

Karnataka HC13 Dec 2022CRL.A/1908/2016

Case brief

AI extract

What is this about?

In a cheque bounce case, the High Court allowed the criminal appeal filed by the complainant against the trial court's dismissal. The court ordered the case remanded for fresh service of summons on the respondent to facilitate prosecution.

What did the court decide?

Impugned order dated 13.07.2016 set aside; case restored to trial court file for fresh service of summons; Rs.5,000 cost awarded to accused.

S Suresha Vs Sathyanarayana — Cheque Dishonour | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13^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.1908 OF 2016

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BETWEEN:

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S SURESHA S/O LATE H SIDDAPPA, AGED ABOUT 43 YEARS R/AT NO. 182, 33^RD CROSS, II MAIN, II BLOCK, JUGANAHALLI, RAJAJINAGAR BENGALURU - 560 010.

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...COMPLAINANT/APPELLANT

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(BY SRI. THYAGARAJA S, ADVOCATE)

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AND

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SATHYANARAYANA FATHER'S NOT KNOWN TO THE APPELLANT AGED ABOUT 57 YEARS, R/AT NO.39/2, III MAIN ROAD, MOTHI NAGARA NEAR ADHI KABEER ASHRAM R T NAGARA, BENGALURU - 560 032.

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......ACCUSED/RESPONDENT

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(BY SRI. S.BALAKRISHNAN, ADVOCATE)

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THIS CRIMINAL APPEAL IS FILED U/S 378(4) OF CR.P.C BY THE ADVOCATE FOR THE APPELLANT PRAYING THAT THIS HON'BLE COURT MAY BE PLEASED TO SET ASIDE THE ORDER DATED 13.07.2016 PASSED BY THE LEARNED XVIII ADDL. CHIEF METROPOLITAN MAGISTRATE AT BENGALURU, IN C.C.NO.22205/2007 AND CONVICT THE RESPONDENT / ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION

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138 OF THE NEGOTIABLE INSTRUMENTS ACT AND COMPENSATE ADEQUATELY THE APPELLANT / COMPLAINANT UNDER SECTION 357(3) OF THE CODE OF CRIMINAL PROCEDURE, TO MEET THE ENDS OF JUSTICE.

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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 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 referred to by their rank before the trial Court.

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This appeal is by complainant challenging the dismissal of the complaint on the ground that complainant has failed to furnish correct address of accused.

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After due service of notice respondent has appeared through counsel.

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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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borrowed hand loan of Rs.80,000/- promising to repay the same within six months and issued cheque. However,

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when presented for realization, it was dishonoured on the ground that account is closed. After issuing legal notice and on failure of the accused to comply with the same, complaint is filed.

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Inspite of taking steps several times, the summons could not be served on the accused. In fact on the affidavit filed by the complainant that accused being a BSNL employee is intentionally evading service of summons, the trial Court has issued attachment of salary of accused to an extent of Rs.5,000/-. It appears inspite of taking coercive steps, the presence of accused could not be secured. Ultimately, on 13.07.2016, the trial Court has dismissed the complaint, against which the present appeal is filed.

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It is pertinent to note that in this appeal the accused is served on the same address as given in the complaint. It fortifies the contention of complainant that intentionally accused has evaded the service of summons. Having regard to this aspect and to enable the

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complainant to prove the allegations against the accused, it has become necessary to remand the case.

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No prejudice would be caused to the accused as he would get opportunity to cross-examine the complainant and his witnesses, if any. Of course accused may also lead defence evidence. However, to compensate the accused for the delay, it is necessary to impose cost of Rs.5,000/- and accordingly, I proceed to pass the following:

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ORDER

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(i) Appeal is allowed on payment of cost of Rs.5,000/-. The impugned judgment and order dated 13.07.2016 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 16.01.2023 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 16.01.2023, 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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S Suresha v. Sathyanarayana

Case brief

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S Suresha v. Sathyanarayana

Case brief

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