Partly allowed

Sameena Begum W/O Khaleel Ahmed v. Khaja Bee W/O Rasool Patel Automale

Karnataka HC1 Feb 2023CRL.P/200019/2023

Case brief

AI extract

What is this about?

The High Court of Karnataka allowed a criminal petition to quash an order dismissing a cheque bounce complaint for non-prosecution by the trial court. While noting the complainant's advocate was unable to attend due to eye surgery, the Court granted one more opportunity and ordered the complainant to deposit costs and proceed with service of the accused.

What did the court decide?

The criminal petition was allowed; the impugned dismissal order was set aside; complainant directed to deposit Rs.5,000/- cost and proceed with service.

Sameena Begum W/O Khaleel Ahmed Vs Khaja Bee W/O Rasool… — Cheque Dishonour | Karnataka HC (2023)

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IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH

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DATED THIS THE 01^ST DAY OF FEBRUARY, 2023 BEFORE

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THE HON’BLE MR. JUSTICE V.SRISHANANDA

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CRIMINAL PETITION NO.200019/2023

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BETWEEN: SAMEENA BEGUM W/O KHALEEL AHMED AGED ABOUT 42 YEARS, OCC: HOUSEHOLD, R/O H.NO.7-964/19 MIJGORI ROAD, NAYA MOHALLA, KALABURAGI-585104

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… PETITIONER

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(BY SRI PRAKASH R. KULKARNI, ADVOCATE)

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AND: KHAJA BEE W/O RASOOL PATEL AUTOMALE AGED ABOUT 57 YEARS, OCC: HOUSEHOLD, R/O OPP. JAWAHAR-E-HIND SCHOOL, BESIDE DR. AAWISE CHILDREN HOSPITAL, C/O HAJI ENGINEER BUILDING, NAYA MOHALLA KALABURAGI-585104

… RESPONDENT

(RESPONDENT SERVED)

THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C. PRAYING TO QUASH THE IMPUGNED ORDER DATED 28.09.2022 DISMISSING THE COMPLAINT FOR NON-PROSECUTION IN C.C.NO.219/2020 BY THE III ADDL. CIVIL JUDGE AND JMFC AT KALABURAGI AND RESTORE THE COMPLAINT AND TO ALLOW THIS CRIMINAL PETITION WITH COST.

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THIS PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:

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O R D E R

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Heard Sri Prakash R. Kulkarni, learned counsel for the petitioner.

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The present petition is filed under Section 482 of Cr.P.C. with the following prayer :-

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“Wherefore, the Petitioner most humbly pray this Hon'ble Court may be:

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a) Pleased to quash the impugned order dated:28.09.2022 dismissing the complaint for non-prosecution in C.C. No: 219/2020 by the III Addl. Civil Judge and JMFC at Kalaburagi and restore the complaint.

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b) Be pleased to allow this criminal petition with cost and grant such other relief, as this Hon'ble Court may deems fit, under the facts and circumstances of the case in the interest of justice and equity.”

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Brief facts which are necessary for disposal

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of the petition are as under:

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A complaint came to be filed by the petitioner seeking action against the respondent for the offence punishable under Section 138 of Negotiable Instruments Act, (for short, hereinafter referred to as ‘NI Act’). After the complaint came to be filed, cognizance was taken by the learned Magistrate and process was issued.

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However, the respondent could not be served and therefore, the learned Magistrate granted time to take steps to serve the respondent / accused by notice. Subsequent thereto, repeatedly the complainant and her advocate remained absent before

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the trial Court. Sufficient time has been granted by the learned Magistrate to appear. Despite granting sufficient time, the complainant did not take appropriate steps to serve the respondent/accused and thereby complaint came to be dismissed for default by the learned Magistrate on 28.09.2022 by passing the following order:

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“Complainant and counsel absent, case again called out at 5.30 pm. Complainant and his Counsel absent. Sufficient opportunity even though Complainant not taken steps against the accused. Hence complainant is hereby dismissed. For non prosecution.”

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Being aggrieved by the same, the

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complainant/petitioner is before this Court.

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Reiterating the grounds urged in the petition, learned counsel for the petitioner contended that advocate for the complainant/petitioner underwent an eye surgery and both eyes were

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operated and therefore, he could not attend the Court for a brief period and in that period, learned Magistrate has noted that complainant and advocate were absent.

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Complainant being a lady is not well-versed

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with the Court proceedings and she also not made known about the hearing dates resulting in dismissal of the complaint which in turn resulted in miscarriage

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of justice and sought for allowing the petition.

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In the light of the arguments put forth on behalf of the petitioner, this Court perused the material on record meticulously.

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Admittedly, sufficient time is granted for taking appropriate steps to serve respondent/accused, however, complainant and advocate remained absent at sufficient length of time, the Trial Court left with no

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alternative, dismissed the complaint for non-

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prosecution.

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Taking note of the fact that advocate

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appearing on behalf of the complainant has undergone eye surgery and therefore he was unable to attend the court, this Court is of the considered opinion that granting one more opportunity to the complainant to proceed with the case, would meet the ends of justice.

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11. Accordingly, following order is passed:

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ORDER

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Criminal petition is allowed.

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The impugned order dated 28.09.2022 passed in C.C.No.219/2020 by the III Addl. Civil Judge and

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JMFC at Kalaburagi is set aside, on the condition that complainant shall deposit a sum of Rs.5,000/- as cost payable to the respondent.

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The petitioner is directed to appear before the

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trial Court without further notice on 20.02.2023 and deposit the cost of Rs.5,000/on or before 20.02.2023 and thereafter, take appropriate steps for serving the respondent and proceed with the case in accordance with law.

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Sd/JUDGE

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VNR

Sameena Begum W/O Khaleel Ahmed v. Khaja Bee W/O Rasool Patel Automale

Case brief

What is this about?

What did the court decide?

Sameena Begum W/O Khaleel Ahmed v. Khaja Bee W/O Rasool Patel Automale

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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