Allowed

Smt.Vasantha Bhaskaran v. Sri B.v.Gopinath

Karnataka HC4 Nov 2022CRL.A/328/2022

Case brief

AI extract

What is this about?

The High Court at Bengaluru heard an appeal under Section 378(4) CrPC regarding a sanction non-bailable order dismissed under Section 138 NI Act following the appellant's non-appearance due to cancer treatment. The court allowed the appeal, set aside the impugned order, and remanded the matter to the trial court.

What did the court decide?

Impugned order dated 14.09.2019 set aside; matter remanded to trial court for disposal; parties directed to appear on 29.11.2022.

Smt.Vasantha Bhaskaran Vs Sri B.v.Gopinath — Cheque Dishonour | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 4^TH DAY OF NOVEMBER, 2022 BEFORE

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

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CRIMINAL APPEAL NO.328 OF 2022

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BETWEEN:

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SMT.VASANTHA BHASKARAN W/O SRI T V BHASKARAN, AGED ABOUT 74 YEARS, NO.1882, SREENARASIMHA NILAYA, 7^TH CROSS, 4^TH MAIN, HAL 3^RD STAGE, TIPPASANDRA, BENGALURU - 560 075.

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… COMPLAINANT/APPELLANT

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(BY SRI. C.VIJAYA KUMAR, ADVOCATE)

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AND:

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SRI B.V.GOPINATH S/O SRI VISHWANTH, MAJOR, NO.107, AKSHAYA, GROUND FLOOR, 5^TH CROSS, CAMBRIDGE LAYOUT, ULSOOR, BENGALURU - 560 008

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...ACCUSED/RESPONDENT

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(BY SRI. SHANKAR M NAIK, ADVOCATE)

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THIS CRL.A. FILED UNDER SECTION 378(4) OF THE CODE OF CRIMINAL PROCEDURE PRAYING TO CALL FOR RECORDS IN C.C.NO.52270/2015 ON THE FILE OF 14^TH ADDL. CHIEF METROPOLITAN MAGISTRATE, AT BENGALURU, SET ASIDE THE ORDER DATED 14.08.2019 PASSED BY THE 57^TH ADDL. CHIEF METROPOLITAN MAGISTRATE AT BENGALURU AND PERMIT THE APPELLANT TO PROSECUTE THE CASE ON

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MERITS AND PASS SUCH OTHER ORDER OR ORDERS AS THIS HON'BLE COURT MAY DEEM FIT TO GRANT IN THE FACTS AND CIRCUMSTANCES OF THE CASE TO MEET THE ENDS OF JUSTICE.

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THIS 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 the matter 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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This is complainant's appeal against dismissal of her complaint filed under Section 138 of N.I.Act.

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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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It is the case of the complainant that she lent a sum of Rs.25,00,000/- to the accused for establishing his business of providing professional musical instruments to the musical directors on hire. Towards repayment of the same, he issued 8 cheques payable between November to December 2014. However, when presented for realization, they were returned dishonored. After issuing notice and on his failure to respond to the notice, the complainant filed complaint in C.C.No.52270/2015, which came to be

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dismissed on 14.08.2019 for non-prosecution. Complainant has pleaded that she is a cancer patient under treatment since 28.03.2016 and it is in third 'C' stage of metastasis. During April 2016, she underwent surgery. For this reason, she could not present on 14.08.2019 on which date the complaint was dismissed.

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In support of her contention, appellant has produced medical certificate issued by KIDWAI Institute of Oncology specifying the schedule for treatment including surgery. Appellant is a senior citizen aged about 74 years. Having regard to the fact that she is suffering from cancer, the reasons for her non-appearance on 14.08.2019 is not intentional. Taking into consideration the fact that appellant is a senior citizen, suffering from cancer and also the cheque amount involved, this Court is of the considered opinion that the matter requires remand to the trial Court to enable the complainant to prove her case on merit by fixing the date of appearance of parties before the trial Court.

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In the result, appeal deserves to be allowed and I proceed to pass the following:

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ORDER

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(i) Appeal is allowed.

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(ii) The impugned order dated 14.09.2019 in C.C.No.52270/2015 on the file of LVII ACMM (now re-designated as XXXIII ACMM) Court, Bengaluru is set aside.

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(iii) The matter is remanded to the trial Court, for disposal in accordance with law, with a direction to both complainant and accused to appear before the trial Court on 29.11.2022 without waiting for further notice.

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Sd/JUDGE

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Smt.Vasantha Bhaskaran v. Sri B.v.Gopinath

Case brief

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Smt.Vasantha Bhaskaran v. Sri B.v.Gopinath

Case brief

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