Allowed

Sri. H Ramu v. Sri. Shivanna

Karnataka HC19 Dec 2023CRL.A/231/2020

Case brief

AI extract

What is this about?

The High Court allowed a criminal appeal against the dismissal of a complaint under Section 138 N.I. Act. The trial court erred by proceeding without a cheque deposit while both parties were absent. The appeal was allowed with costs imposed on the complainant, and the matter was remitted.

What did the court decide?

Appeal allowed; impugned order of 07.09.2019 set aside; matter remitted to Magistrate; complainant directed to deposit Rs. 2,500 as costs.

Sri. H Ramu Vs Sri. Shivanna — Cheque Dishonour | Karnataka HC (2023)

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NC: 2023:KHC:46213 CRL.A No. 231 of 2020

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 19^TH DAY OF DECEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR CRIMINAL APPEAL NO. 231 OF 2020

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BETWEEN:

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SRI. H. RAMU, S/O. LATE. HUCHEGOWDA, AGED 62 YEARS, R/AT BHOODAGUPPE VILLAGE, KASABA HOBLI, MADDUR TALUK, MANDYA DISTRICT-571 428.

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…APPELLANT

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(BY SRI. JAGADISH BALIGA .N, ADVOCATE) AND:

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Digitally signed by SOWMYA D Location: High Court of Karnataka

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SRI. SHIVANNA, AGED 57 YEARS, S/O CHANNAVEERAIAH, R/AT NO. 2^ND CROSS, H K V NAGARA, NEAR T B CIRCLE, SETU BUIDLING, MADDUR TOWN, MANDYA DISTRICT-571 428.

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…RESPONDENT (RESPONDENT IS SERVED) THIS CRL.A. IS FILED U/S.378(4) CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 07.09.2019 IN C.C.NO.451/2018 ON THE FILE OF THE I ADDITIONAL CIVIL JUDGE AND JMFC MADDUR AND THEREBY CONVICT THE RESPONDENT FOR THE OFFENCE P/U/S.138 OF N.I. ACT.

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

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2 - NC: 2023:KHC:46213 CRL.A No. 231 of 2020

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JUDGMENT

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Heard the learned counsel for appellant.

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The appellant has filed the complaint under Section 200 of Cr.P.C. against respondent/accused alleging that he has committed offence punishable under Section 138 of the N.I. Act. According to the complainant, the accused has availed financial assistance to the tune of Rs.2,00,000/from complainant/appellant and in discharge of the said debt, he has issued a cheque bearing No.346453 on 16.11.2017 for Rs.2,00,000/- which was when presented, returned for “insufficient funds”. Thereafter, a statutory notice was issued. However, as there was no response, he claimed to have filed a complaint before the learned Magistrate.

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The learned Magistrate has recorded the sworn statement of complainant and thereafter, issued process against the accused. The accused has appeared through his counsel and he was enlarged on bail. Subsequently, the learned Magistrate recorded the plea of the accused

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3 - NC: 2023:KHC:46213 CRL.A No. 231 of 2020

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and further directed him to deposit 20% of the cheque amount by granting 60 days of time from 29.04.2019. However, the order sheet discloses that no such amount was deposited and initially, though the matter was kept pending for deposit, subsequently, the matter was posted for examination-in-chief and deposit. On 07.09.2019, the

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learned Magistrate considering the fact that the complainant and counsel regularly absent, dismissed the complaint for non-prosecution.

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4. The dismissal of the complaint falls under

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Section 256 of Cr.P.C. and it is appealable order as it amounts to acquittal. The complainant on 12.09.2019 moved an application for recalling the order of dismissal, but the learned Magistrate by order dated 24.09.2019, rejected the said application on the ground that accused has got a right of appeal. However, instead of filing the appeal, complainant/appellant filed revision before the V Additional Sessions Judge, Mandya in Cr.R.P.No.260/2019. The learned Magistrate dismissed the said revision vide

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4 - NC: 2023:KHC:46213 CRL.A No. 231 of 2020

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order dated 28.11.2019, holding that the dismissal order amounts to acquittal though there is no specific word is used in the order. As such, the complainant is before this Court by way of this appeal.

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The learned counsel for appellant fairly concede that there is a mistake on his part in filing the recalling application and filing the revision, and he could have directly approached this Court by way of appeal. He would also submit that to set right the mistakes which have been done inadvertently, he has approached this Court.

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On perusal of the order sheet of the trial Court, it is evident that the matter was all along pending for payment/deposit of 20% of the cheque amount and for examination-in-chief. The learned Magistrate should not have proceeded with the trial without deposit of 20% of cheque amount. But at the same time, the conduct of the complainant cannot be appreciated as he never appeared before the Court and the learned counsel appearing for the complainant did not insist for depositing 20% of the

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amount as ordered by the trial Court. He should have brought it to the notice of the Court that amount was not deposited and accused has no right to contest the matter. The learned Magistrate should have taken coercive steps as against the accused/respondent herein, but instead of doing so he straight away dismissed the complaint and the order of the learned Magistrate is arbitrary and erroneous and as such, it suffers from perversity. But at the same time, the complainant/appellant is also guilty of latches. Considering these facts and circumstances, the appeal needs to be allowed subject to imposition of certain costs

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on account of latches on the part of the complainant. Hence, I proceed to pass the following:

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ORDER

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(i) The appeal is allowed .

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(ii) The impugned order dated 07.09.2019 passed by the I Additional Civil Judge and JMFC, Maddur in C.C.No.451/2018, is set aside.

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(iii) The matter is remitted back to the learned Magistrate with a direction to register the

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NC: 2023:KHC:46213 CRL.A No. 231 of 2020

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matter in original C.C.No.451/2018 and then proceed in accordance with law as directed in the body of this judgment.

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(iv) Further, the complainant/appellant herein is directed to appear before the learned Magistrate on 22.01.2024 at 10.30 a.m., without waiting for any notice. On the date of appearance, the complainant/appellant herein shall deposit cost of Rs.2,500/- (Rupees Two Thousand Five Hundred only) before the Taluk Legal Services Committee, Maddur. On the same date, the complainant/appellant shall take appropriate steps for issuing process to the accused for his appearance and thereafter, the learned Magistrate is directed to proceed in accordance with law.

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Sd/JUDGE

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List No.: 1 Sl No.: 13

Sri. H Ramu v. Sri. Shivanna

Case brief

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Sri. H Ramu v. Sri. Shivanna

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