Allowed

Sri Jairam R v. Sri Chandra M S

Karnataka HC7 Nov 2022CRL.A/54/2022

Case brief

AI extract

What is this about?

The High Court set aside an order dismissing a Section 138 complaint for default due to the complainant's absence. The Court held that dismissing the case was unjust given the accused had absconded, facts were recorded, and only financial recovery was pending. The appeal was allowed.

What did the court decide?

The order dated 08.10.2021 was set aside, and the complaint was restored to the file for prosecution.

Sri Jairam R Vs Sri Chandra M S — Cheque Dishonour | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 7^TH DAY OF NOVEMBER, 2022

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BEFORE

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

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CRIMINAL APPEAL NO. 54 OF 2022

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BETWEEN:

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SRI JAIRAM R S/O RACHAPPA AGED ABOUT 36 YEARS RESIDING AT NO.19, 2^ND CROSS, CHELUVAPPA GARDEN BHUVANESHWARINAGARA K P AGRAHARA BENGALURU - 560 023

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...COMPLAINANT/APPELLANT

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(BY SRI. SAMARTH PRAKASH, ADVOCATE FOR SRI. KUMAR RAM C.M, ADVOCATE)

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AND

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SRI CHANDRA M S AGED ABOUT 37 YEARS S/O LATE SIDDAIAH PROPRIETOR OF C S R SECURITY SERVICE NO.33, 50 FEET ROAD 1^ST FLOOR, RAGHAVENDRA BLOCK BENGALURU - 560 050

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ALSO AT R/AT C/O RAVI NO.24, 1^ST FLOOR BEHIND THALAGHATTAPURA P S OPP KALABYRAVESHWARA NILAYA BENGALURU - 560 062

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......ACCUSED/RESPONDENT

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(RESPONDENT - SERVED)

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THIS CRIMINAL APPEAL 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 a) SET ASIDE THE ORDER DATED 08.10.2021 IN C.C.NO.53095/2018 PASSED BY THE XIV ADDL CHIEF METROPOLITAN MAGISTRATE, MAYOHALL UNIT, BANGALORE AND RESTORE THE COMPLAINT IN C.C.NO.53095/2018 ON THE FILE OF XIV ADDL CHIEF METROPOLITAN MAGISTRATE, MAYOHALL UNIT, BANGALORE; AND SUCH OTHER RELIEFS AS THIS HON'BEL COURT MAY DEEM FIT TO GRANT IN THE CIRCUMSTANCES OF THE ABOVE 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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Being aggrieved by dismissal for default of

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

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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 he and

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accused are friends knowing each others since several years. During 2016, in order to improve his business accused borrowed a sum of Rs.6,00,000/- from the complainant promising to repay the same at the earliest. On his failure, when complainant demanded repayment,

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accused issued two cheques dated 23.09.2016 for Rs.3,00,000/- each. However, when the said cheques were presented for encashment they were returned dishonored on the ground of insufficiency of funds. When this fact was brought to the notice of the accused, he pleaded for ten months time.

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3.1 It is further case of the complainant that

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during June 2017, he demanded accused to repay the amount. This time accused issued a cheque dated 15.07.2017 for a sum of Rs.6,00,000/-. Once again on presentation, it was dishonored on 05.09.2017 on the ground of insufficiency of funds. After issuing notice, complainant filed complaint in C.C.No.53095/2018. Based on his sworn statement and documents, the trial Court took cognizance. In fact accused appeared and secured bail. After filing application under Section 145(2) of N.I.Act, when PW-1 was recalled for crossexamination, accused approached Lok Adalath for settlement, but the matter could not be settled. However, thereafter accused remained absent and

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therefore NBW came to be issued against him and it was pending.

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3.2 Complainant has further contended that in the meanwhile due to COVID-19 restrictions, the Courts were not functioning and as such the case was not taken up for hearing between 04.10.2020 to 03.08.2021. On 08.10.2021, the case was called. On that day, for nonappearance of the complainant, the complaint came to be dismissed. Complainant is having a good case on merit and prays to allow the appeal providing him opportunity to prosecute the complaint.

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Notice of this appeal is duly served on the respondent. However, he has not chosen to appear before the Court.

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As evident from the appeal memo and the documents placed on record, it is the specific case of the complainant that having borrowed a sum of Rs.6,00,000/- from him, when accused issued cheque towards repayment of it, it was dishonored on the ground of funds insufficient. It is pertinent to note that at the

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first instance accused did not choose to file application to recall PW-1 for cross-examination. On the other hand, the matter was taken up before the Lok Adalath for settlement. Only after several attempts to settle the matter failed he has chosen to file application to recall PW-1 for cross-examination. When the said application was allowed, he has remained absent and as such NBW came to be issued against him.

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As evident from the order sheet, thereafter due to COVID-19 restrictions, the case has not been taken up for consideration from 04.10.2020 to 03.08.2021. After relaxation of COVID-19 restrictions, the case was taken up for consideration on 08.10.2021, for the first time and on that day on the ground of complainant and his counsel being absent, it is dismissed for non-prosecution. In fact, the complainant's evidence was already recorded and the complainant was not required to do anything further. On account of abscondance of the accused, the progress of the case was stalled. For the fault of accused and for no fault of the complainant, he is being punished by dismissing the

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complaint. Taking into consideration these aspects, I am of the considered opinion that an opportunity be given to the complainant to prosecute the complaint and accordingly, I proceed to pass the following:

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ORDER

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(i) Appeal is allowed. The order dated 08.10.2021 is set aside. Complaint is restored to the file.

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(ii) Appellant is directed to appear before the trial Court on 06.12.2022 without waiting for notice from it and prosecute the complaint diligently.

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Sd/-

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JUDGE

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Sri Jairam R v. Sri Chandra M S

Case brief

What is this about?

What did the court decide?

Sri Jairam R v. Sri Chandra M S

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

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