Allowed

Sri K N Shivashankar v. Sri Venugopal

Karnataka HC3 Nov 2022CRL.A/729/2018

Case brief

AI extract

What is this about?

This appeal was filed under Section 378(4) Cr.P.C. against the acquittal in a cheque dishonour case. The High Court allowed the appeal, setting aside the acquittal and remanding the matter to the trial court for a fresh trial after issuing notice to the accused.

What did the court decide?

The appeal filed under Section 378(4) Cr.P.C. was allowed, the impugned order of acquittal was set aside, and the matter was remanded for a fresh trial.

Sri K N Shivashankar Vs Sri Venugopal — Cheque Dishonour | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 3^RD 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.729 OF 2018

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BETWEEN:

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SRI K N SHIVASHANKAR S/O NARAYANA RAO AGED ABOUT 61 YEARS, GAYATHRI STRUCTURAL AND ROOFING PVT LTD., #16, OLD NO. 999, H.M.T.MAIN ROAD, DIWANARAPALYA, YESHWANTHAPURA BANGALORE - 560 022.

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… COMPLAINANT/APPELLANT

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(BY SRI. RAJENDRA K.R., ADVOCATE)

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AND:

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SRI VENUGOPAL AGED ABOUT 66 YEARS, R/A ADITI #005, 2^ND CROSS, MUNESHWARA TEMPLE ROAD EXTENSION, KEMPAPURA, HEBBALA BANGALORE - 560 024. AND ALSO AT MR. VENUGOPAL PARINDE APARTMENT #173, 6^TH CROSS, GANDHINAGAR, BANGALORE - 560 009. ...ACCUSED/RESPONDENT (BY SRI. CHANDRAIAH, ADVOCATE) THIS APPEAL IS FILED UNDER SECTION 378(4) OF THE CODE OF CRIMINAL PROCEDURE PRAYING TO a) SET ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL DATED 27.01.2018 PASSED BY THE IV ADDITIONAL AND XXX A.C.M.M COURT (S.C.C.H.6) AT BANGALORE CITY IN

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C.C.NO.5449/2017 AND CONVICT THE RESPONDENT / ACCUSED FOR THE OFFENCES PUNISHABLE UNDER SECTION 138 OF NEGOTIABLE INSTRUMENT ACT AND TO AWARD THE COMPENSATION TO THE APPELLANT / COMPLAINANT b) PASS SUCH OTHER ORDER / ORDERS AS THIS HON'BLE COURT DEEMS FIT IN THE FACTS AND CIRCUMSTANCES OF THE CASE IN THE INTEREST OF JUSTICE.

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

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J U D G M E N T

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This is complainant's appeal against dismissal of his 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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Appellant has contended that initially it was pending before XIII ACMM and vide order dated 20.11.2017, it was transferred to the Court of XXX ACMM, Bengaluru. On 10.01.2018, it was posted for cross-examination of PW-1. Noting the absence of PW-1, the trial Court took the cross-examination as -Nil- and posted the case to 16.01.2018 for statement under Section 313 Cr.P.C and after recording the said statement posted the matter to 17.01.2018 for arguments and in the absence of complainant and his

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counsel, taking their arguments as heard posted the matter to 27.01.2018 for judgment and on that pronounced the judgment dismissing the complaint.

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It is further case of the appellant that from 27.11.2017, the case was adjourned to 28.12.2017. On that day, complainant came to know that it is transferred to some other Court on 20.11.2017 itself. However, he could not get the next date. By the time he could ascertain the next date and the Court to which it is transferred, the complaint was already dismissed and prays to remand the case to enable him to prosecute the complaint.

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Heard arguments and perused the record.

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From the order sheet it is evident that initially the case was pending before XIII ACMM, Bengaluru and on 21.11.2017, it is noted to have been transferred to SCCH-6 vide administrative order dated 20.11.2017. On 28.12.2017, it was called before the transferred Court

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and after noting the absence of PW-1 posted to 10.01.2018. On 10.01.2018, after noting the absence of

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PW-1, his cross-examination was taken as Nil. Thereafter, recording statement under Section 313 Cr.P.C, the transferred Court has proceeded to dismiss the appeal on merit.

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The fact that on account of transfer of the case, the complainant and his counsel were not in a position to know the next date and thereby were prevented from appearing before the transferred Court is not seriously disputed by the counsel for accused. Having regard to the alleged transaction between the complainant and accused and consequent dishounour of the cheque and also taking into consideration the amount involved, I am of the considered opinion that complainant be given one more opportunity to prosecute the complaint and as such the matter requires remand fixing the date of appearance of parties before the trial Court.

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However, learned counsel for accused submits that accused is not in contact with him and therefore, it may not be possible for him to intimate the date and trial Court may be directed to issue notice to the accused.

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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 27.01.2018 in C.C.No.5449/2017 on the file of XXX ACMM Court, Bengaluru is set aside.

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(iii) The matter is remanded to the trial Court, with a direction to the complainant to appear before the trial Court 05.12.2022 without waiting for further notice.

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(iv) However, the trial Court is directed to issue notice to accused and proceed in accordance with law.

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Sd/-

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JUDGE

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Sri K N Shivashankar v. Sri Venugopal

Case brief

What is this about?

What did the court decide?

Sri K N Shivashankar v. Sri Venugopal

Case brief

What is this about?

What did the court decide?

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