Allowed

Khagendra Nath Ghosh v. Shanmugam

Karnataka HC30 Oct 2023CRL.A/1466/2019

Case brief

AI extract

What is this about?

The High Court of Karnataka allowed an appeal against a trial court order dismissing a cheque dishonour case for non-prosecution. The High Court set aside the dismissal, holding it unsustainable law and remitted the matter for disposal. Null void: The High Court found the trial court erroneous in dismissing the case without securing the accused or noticing their absence.

What did the court decide?

The order dated 22.02.2019 is set aside. The matter is remitted to the Trial Court to provide opportunity to both parties to adduce evidence and dispose of the case within six months.

Khagendra Nath Ghosh Vs Shanmugam — Cheque Dishonour | Karnataka HC (2023)

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NC: 2023:KHC:38368 CRL.A No. 1466 of 2019

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30^TH DAY OF OCTOBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE G BASAVARAJA

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CRIMINAL APPEAL NO. 1466 OF 2019

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BETWEEN:

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KHAGENDRA NATH GHOSH, S/O. LATE SRI. MAHESWER GHOSH, AGED ABOUT 50 YEARS, R/AT: PLOT NO. 42, 5^TH CROSS, MODI GARDEN, J.C. NAGAR, BENGALURU - 560 006.

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…APPELLANT

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(BY SRI. SARAVANA S. ADVOCATE FOR SRI. SATYANARAYANA CHALKE S., ADVOCATE)

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AND:

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Digitally signed by SANDHYA S Location: High Court of Karnataka

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SHANMUGAM S/O. LATE K. SWAMINATHAN, AGED ABOUT 58 YEARS, R/AT: QUARTER NO. 26/1, DRDA COMPLEX, DOMLURU, BENGALURU - 560 008.

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…RESPONDENT

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(BY SRI. P.B. RAJU, ADVOCATE)

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THIS CRL.A IS FILED UNDER SECTION 378(4) OF CR.P.C TO SET ASIDE THE ORDER DATED 22.02.2019 DISMISSED THE C.C.NO.50721/2013 FOR NON PROSECUTION AND ORDER DATED 13.06.2019 REJECTING THE MEMO FILED FOR RESTORATION OF CASE ON THE FILE OF 58tH ACMM MAYO HALL BENGALURU AND ETC.,

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NC: 2023:KHC:38368 CRL.A No. 1466 of 2019

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

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JUDGMENT

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The appellant/complainant has preferred this appeal against the order dated 22.02.2019 passed in C.C.No.50721/2013 by the Court of XIV Addl. CMM, Mayohall Unit, Bangalore.

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I have heard the arguments on both sides.

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Learned counsel for the appellant submitted that the complainant/PW.1 has filed complaint against the accused for commission of offence under Section 138 of Negotiable Instruments Act, 1881 (hereinafter referred to as "N.I. Act" for short). The Trial Court took cognizance of the offence and the case was registered in C.C.No.50721/2013. The plea was recorded and the accused pleaded not guilty. In order to substantiate the case of the complainant/PW.1, the complainant/PW.1 got examined himself on 26.04.2017. After recording the statement of the accused under Section 313 of Cr.P.C., the case was posted for arguments on 30.06.2017.

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3 - NC: 2023:KHC:38368 CRL.A No. 1466 of 2019

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However, the accused came up with an application to recall the complainant/PW.1 for cross examination. The said application was allowed. However, the accused did not cross examine the complainant/PW.1 on several dates. Hence, the case was posted for arguments on 02.08.2017. Again the accused has filed application under Section 311 of Cr.P.C. for further cross of complainant/PW.1 about his income tax returns. The same came to be allowed on 17.12.2018 and the case was posted for further cross examination of PW.1 on 31.12.2018. However, the accused did not cross examine complainant/PW.1. The accused having filed one more application under Section 311 of Cr.P.C., the same came to be allowed on 04.02.2019. In the order sheet, the date was given as 22.03.2019 and in the Court hall dairy also it is mentioned as 22.03.2019. Learned counsel appearing for complainant/PW.1 also noted the date as 22.03.2019. However, the case was called on 22.02.2019. On that day, the Trial Court has dismissed the case for nonprosecution which is not sustainable under law. On all these grounds, he sought to allow the appeal.

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4. Learned counsel for respondent has submitted that

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the Trial Court has passed the order in accordance with law and

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NC: 2023:KHC:38368 CRL.A No. 1466 of 2019

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there is no need for interference. Therefore, he sought for dismissal of the appeal.

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Having heard the arguments on both sides and on

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perusal of the records, the following points arise for my consideration:

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i. Whether the appellant has made out a ground to interfere with the order dated 22.02.2019?

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ii. What order?

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My finding to the above points are as under:

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i. In the affirmative

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ii. as per final order

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Regarding to Point No.1:

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I have examined the impugned order dated 22.02.2019 which reads as under:

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"Matter is called out. No Representation. Call at 1PM Sd/Again the case called at 1 PM No representation call at 3pm. Sd/-

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NC: 2023:KHC:38368 CRL.A No. 1466 of 2019

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Matter is called out at 3PM no representation of advocate sufficient time is granted for appearance of complainant (PW1) for cross but not appeared, Hence memo is dismissed for non prosecution Accused is acquitted.

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Sd/22/2"

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The complainant/PW.1 has filed a memo on

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28.03.2019 to restore the matter.

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On the said memo, the Trial Court has passed the order on this memo on 13.06.2019, which reads as under:

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"ORDER ON MEMO FOR RESTORATION OF THE DISMISSAL ORDER

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The complainant has filed the memo on 28.03.2019 to restore the matter because it was dismissed on 22.02.2019 for nonrepresentation by the complainant. On that day, the matter was posted for crossexamination of the PW.1. In the memo the complainant has mentioned that on 22.03.2019 the counsels of either side were present, but matter was not listed. However, the further date has not been mentioned in the 'A' Diary. Therefore, the

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NC: 2023:KHC:38368 CRL.A No. 1466 of 2019

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contention of the complainant is that the parties and Counsels were present in the court on 22.03.2019. Therefore, he prays to allow the application.

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I perused the order sheet. The order sheet reveals that the complainant was not a regular litigant before the court for cross-examination. Therefore in many occasions the complainant was not present. Inspite of his absence, the court adjourned the matter only in the interest of justice. The contention of the complainant is that on 22.03.2019 the court was not presided by the Judge due to the Casual Leave. However, the order sheet dtd.22.02.2019 indicates that the matter was on board and called at first session and adjourned till 1.00 p.m. because of absent of either side. Again the matter was called at 1.00 p.m. and posted at 3.00 p.m. Again at 3.00 p.m. the matter was not represented by complainant side. Therefore, after observing the nonrepresentation of the complainant/Pw.1, the matter was dismissed for non-prosecution.

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Criminal Court has no discretionary power to set-aside its own

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NC: 2023:KHC:38368 CRL.A No. 1466 of 2019

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order it may be passed erroneously or not. Therefore, criminal court has no jurisdiction to restore the earlier stage of the criminal case by setting aside its own order. But, discretionary power has been granted to civil courts u/sec.151 of Code of Civil Procedure. Whereas the criminal court has not been granted such power. Therefore, even though the order of dismissal was passed due to oversight, or the court has passed wrong order, but same court cannot restore its own order as per Criminal Procedure Code. Hence, the following:

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ORDER

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The memo filed by the complainant side on 28.03.2019, is rejected. The order dtd.22.02.2019 remains intact."

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A perusal of the order dated 22.02.2019, the Trial Court has recorded the absence of complainant/PW.1 and dismissed the case for non-prosecution. Presence of accused is not recorded in the order sheet. If the accused was not present on 22.02.2019, the Trial Court ought to have taken legal steps to secure the accused, instead dismissed the case for non-

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NC: 2023:KHC:38368 CRL.A No. 1466 of 2019

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prosecution which is not sustainable under law. Hence, I answer point No.1 in affirmative.

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Regarding Point No.2:

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For the aforesaid reasons, I proceed to pass the following:

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ORDER

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The appeal is allowed .

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The order dated 22.02.2019 passed in C.C.No.50721/2013 by the Court of XIV Addl. C.M.M., Mayohall Unit, Bangalore is set aside.

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The matter is remitted to the Trial Court with a direction to provide opportunity to both the parties to adduce their evidence. Thereafter, the Trial Court shall dispose of the case in accordance with law.

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Both the parties are directed to appear before the Trial Court on 16.11.2023 without fail and without waiting for notice from the Trial Court.

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NC: 2023:KHC:38368 CRL.A No. 1466 of 2019

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As the matter is of the year 2013, the Trial Court is directed to dispose of the case within six months from 16.11.2023.

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Registry is directed to send the copy of the order to the Trial Court.

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Sd/JUDGE

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SSD

Khagendra Nath Ghosh v. Shanmugam

Case brief

What is this about?

What did the court decide?

Khagendra Nath Ghosh v. Shanmugam

Case brief

What is this about?

What did the court decide?

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