Allowed

Shri.Veerayya S/O Veerabasayya Kochalapurmath v. Balakrishna T. Magajikondi

Karnataka HC4 Dec 2023CRL.A/100257/2022

Case brief

AI extract

What is this about?

The High Court allowed the criminal appeal filed by legal representatives of a deceased appellant. The court set aside the trial court order dismissing the case for the appellant's absence and restored the criminal complaint to the trial court due to bona fide medical reasons preventing evidence led.

What did the court decide?

The impugned order dated 29.12.2018 is set aside and Criminal Case No. 1544/2016 is restored to the file of the TMFC-II, Hubballi for prosecution by legal representatives.

Shri.Veerayya S/O Veerabasayya Kochalapurmath Vs… — Cheque Dishonour | Karnataka HC (2023)

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NC: 2023:KHC-D:14107 CRL.A No. 100257 of 2022

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 4^TH DAY OF DECEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR

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CRIMINAL APPEAL NO. 100257 OF 2022

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BETWEEN:

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SHRI. VEERAYYA S/O VEERABASAYYA KOCHALAPURMATH, SINCE DECEASED BY HIS LR’S.

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1A. PUSPA W/O VEERAYYA KOCHALAPURMATH, AGED ABOUT 65 YEARS, OCC. HOUSEHOLD, R/O. NO.104, SWAMI PLAZA, DESHAPANDE NAGAR, HUBBALLI-580029.

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1B. SUMA W/O RACHAIAH WARIKALMAT, AGE. 53 YEARS, OCC. HOUSEHOLD WORK, R/O. NO.104, SWAMI PLAZA, DESHAPANDE NAGAR, HUBBALLI-580029.

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Digitally signed by VIJAYALAKSHMIM KANKUPPI VIJAYALAKSHMIM KANKUPPI Date: 2023.12.07 11:55:34 +0530

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1C. GURUPRAKASH S/O VEERAYYA KOCHALAPURMATH, AGED ABOUT 38 YEARS, OCC. BUSINESS, R/O. NO.104, SWAMI PLAZA, DESHAPANDE NAGAR, HUBBALLI-580029.

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… APPELLANTS

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(BY SRI. MAHESH WODEYAR, ADVOCATE)

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AND:

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BALAKRISHNA T. MAGAJIKONDI, AGE. 48 YEARS, OCC. BUSINESS, R/O- PLOT NO.18, BANASHANKARI LAYOUT, PARASAWADI, KESHWAPUR, HUBBALLI-580025.

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… RESPONDENT

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(BY SRI. K.L. PATIL, ADVOCATE)

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2 - NC: 2023:KHC-D:14107 CRL.A No. 100257 of 2022

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THIS CRIMINAL APPEAL IS FILED U/S 378(4) OF CR.P.C., SEEKING TO SET ASIDE THE ORDER DATED 29.12.2018 PASSED BY THE JMFC-II COURT, HUBBALLI IN CC NO.1544/2016 FOR THE PUNISHABLE U/S 138 OF NI ACT AND CONSEQUENTLY RESTORE THE CC NO.1544/2016 ON THE FILE OF JMFC-II COURT, HUBBALLI.

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

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JUDGMENT

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This appeal is filed praying to set aside the impugned order dated 29.12.2018 passed in C.C.No.1544/16 by the JMFC-II Court, Hubballi and consequently restore the said criminal case.

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Heard learned counsel for the appellant. The

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appellant has died during pendency of this appeal and his legal representatives were brought on record.

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Learned counsel for the appellant submits that

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the appellant who was complainant before the Trial Court could not attend to the Court to give evidence as he was suffering from kidney related problems and he was on dialysis during the year 2017-18. He further submits that even the counsel representing the complainant namely Sri

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3 - NC: 2023:KHC-D:14107 CRL.A No. 100257 of 2022

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Rajshekhar P. Ugargol died on 21.06.2018. Therefore, nobody represented the complainant on the date on which criminal case was dismissed for none appearance of the complainant on 29.12.2018. He further submits that there were bona fide reasons for non appearance of the complainant and his son who is a GPA holder who was taking care of his father as he is taking treatment for kidney related problems. With this, he prayed to allow the petition and set aside the impugned order dated 29.12.2018 and restore the criminal case.

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The appellant through his GPA holder who is

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son of the appellant has filed a private complaint against the respondent for offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as ‘N.I.Act’, for brevity). The Trial Court took the cognizance and registered the case against the respondent in C.C.No.1544/2016 for the offence punishable under Section 138 of the N.I. Act. The respondent has appeared through his counsel and plea

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4 - NC: 2023:KHC-D:14107 CRL.A No. 100257 of 2022

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was recorded and case was posted for recording the complainant evidence. The appellant/complainant was noted absent on 27.09.2017 till 23.12.2018. Documents produced reveal that the appellant/complainant was taking treatment for his kidney related problems in Manipal Hospital Bengaluru and Suchirayu Hospital Hubballi during the year 2017-18. The certificate dated 02.03.2020 issued by the Dr.Chetan Mudrabettu indicates that the complainant is suffering from T2DM/HTN/CKD-5D, he is undergoing regular maintenance Hemodialysis since September 2016 till date, this treatment is life saving for him. Learned counsel for the appellant submits that the GPA holder is son of the complainant and he was attending his father while he was taking treatment and therefore, could not appear to prosecute the criminal case.

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On perusal of the said medical record, non appearance for the complainant and GPA holder who is son of the complainant in criminal case to lead evidence was for bona fide reasons. If the impugned order is not set

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5 - NC: 2023:KHC-D:14107 CRL.A No. 100257 of 2022

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aside and criminal case is not restored, the complainant will be put to injustice.

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The appellant/complainant has made out

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grounds for setting aside the impugned order dated 29.12.2018 and to restore the criminal case. In the result, the following

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ORDER

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Appeal is allowed.

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The impugned order dated 29.12.2018 passed by the JMFC-II Court, Hubballi is set aside. The Criminal Case No.1544/2016 is ordered to be restored.

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The legal representatives of the

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appellant/complainant who brought on record are permitted to prosecute the said criminal case representing the appellant/complainant. Legal representatives of the appellant/complainant are directed to appear before the

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6 - NC: 2023:KHC-D:14107 CRL.A No. 100257 of 2022

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Trial Court on 02.01.2024 without awaiting any Court notice.

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Sd/JUDGE

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DSP CT:BCK List No.: 1 Sl No.: 23

Shri.Veerayya S/O Veerabasayya Kochalapurmath v. Balakrishna T. Magajikondi

Case brief

What is this about?

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Shri.Veerayya S/O Veerabasayya Kochalapurmath v. Balakrishna T. Magajikondi

Case brief

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What did the court decide?

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