Allowed

Sri Banuprakash C v. Sri Srikanth C

Karnataka HC8 Dec 2023CRL.A/304/2020

Case brief

AI extract

What is this about?

The High Court in Criminal Appeal No. 304 of 2020 allowed the appeal against the dismissal of a complaint under Section 138 of the NI Act. Due to the complainant's absence, the trial court had dismissed the complaint, which was treated as an acquittal. The High Court remanded the matter to the trial court for further proceedings and ordered the complainant to deposit costs.

What did the court decide?

The complaint was restored to the trial court file for cross-examination, and the appellant was ordered to deposit Rs.2,500 as costs and appear on 19.01.2024.

Sri Banuprakash C Vs Sri Srikanth C — Cheque Dishonour | Karnataka HC (2023)

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1 - NC: 2023:KHC:44679 CRL.A No. 304 of 2020

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 8^TH DAY OF DECEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR

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CRIMINAL APPEAL NO. 304 OF 2020

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BETWEEN:

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SRI. BANUPRAKASH .C, S/O. B. M. CHIKKABORE GOWDA, AGED ABOUT 31 YEARS, RESIDING AT NO. 23, 7^TH CROSS, PRAMOD LAYOUT, NAYANDANAHALLI, BENGALURU-560 039.

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…APPELLANT (BY SRI. K.S. RAGHAVENDRA, ADVOCATE FOR SRI. SHIVANANDA .S, ADVOCATE)

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AND:

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Digitally signed by SOWMYA D

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SRI. SRIKANTH .C, S/O. CHANNARAMAIAH, AGED ABOUT 34 YEARS, RESIDING AT NO. 109, 1^ST FLOOR, 59 FEET MAIN ROAD, 22^ND MAIN, GIRINAGAR, BENGALURU-560 085.

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AND ALSO AT: Location: High Court R/AT NO. 332, 8^TH MAIN, of 4^TH CROSS, B.D.A. LAYOUT, Karnataka GIRINAGAR, BENGALURU-560 085.

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…RESPONDENT

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(RESPONDENT IS SERVED)

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THIS CRL.A IS FILED U/S.378(4) CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 19.09.2018 PASSED BY THE LVIII ADDL.C.M.M., MAYO HALL, BENGALURU IN C.C.NO.58935/2017

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NC: 2023:KHC:44679 CRL.A No. 304 of 2020

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DISMISSING THE COMPLAINT FOR NON PROSECUTION - ACQUITTING THE RESPONDENT/ACCUSED 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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JUDGMENT

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This appeal is filed by the appellant / complainant under Section 378 (4) of Code of Criminal Procedure (hereinafter referred to as 'Cr.P.C' for short) challenging the order of dismissal of the complaint filed before the learned LVIII Additional Chief Metropolitan Magistrate, Mayo Hall Unit Bangalore in C.C.No.58935/2017 dated 19.09.2018.

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For the sake of convenience, the parties herein are referred with original ranks occupied by them before the trial Court.

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The brief factual matrix leading to the case are that the complainant alleged that accused had borrowed a sum of Rs.2,50,000/- from him as a hand loan assuring of repayment within six months. However,

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3 - NC: 2023:KHC:44679 CRL.A No. 304 of 2020

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he did not repay the same and on demand, he issued a cheque dated 27.03.2017 drawn on HDFC Bank Kalkara Main Road Branch, Bengaluru. When the said cheque was presented for encashment, it was returned with an endorsement that ‘payment stopped by the drawer’. The complainant thereafter got issued a legal notice and as there was no response, he filed a complaint before the learned Magistrate under Section 200 of Cr.P.C alleging that accused has committed offence under Section 138 of N.I.Act.

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The complaint was registered in PCR

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No.56314/2017. After recording the sworn statement, the learned Magistrate has taken cognizance by issuing process to the accused by registering the case in C.C.No.58935/2017. The accused subsequently appeared in pursuance of summons and was enlarged on bail.

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4 - NC: 2023:KHC:44679 CRL.A No. 304 of 2020

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Thereafter, as per the decision of the Hon'ble

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Apex Court in ‘INDIAN BANK ASSOCIATION AND OTHERS VS. UNION OF INDIA AND OTHERS’, (2014) 5 SCC 590 , the learned Magistrate ordered for treating the sworn statement as examination-in-chief. Later on, the matter was posted for cross-examination and for one or the other reasons, it was adjourned. On 19.09.2018, matter was again called out, and since, there was no representation on behalf of the complainant and his counsel, ultimately, the complaint came to be

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dismissed.

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Against this dismissal of the complaint, initially the complainant has approached the learned Sessions Judge in Crl.R.P.No.25158/2018. Later on, the matter was adjourned for hearing on maintainability and subsequently, the learned counsel for the appellant has withdrawn the revision petition and has filed this appeal on the ground that the dismissal of the

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5 - NC: 2023:KHC:44679 CRL.A No. 304 of 2020

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complaint under Section 256 of Cr.P.C amounts to acquittal and it is only appealable. Hence, he filed this appeal.

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Heard the learned counsel for the appellant. The respondent though served is unrepresented. Perused the documents perused by the appellant.

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Admittedly, the sworn statement of the complainant was recorded and same was treated as examination-in-chief. However, the matter was adjourned on 17.04.2018, 13.06.2018, 02.07.2018, 27.07.2018, 17.08.2018 and 19.09.2018 for crossexamination. For one or the other reasons, the matter was adjourned and on 19.09.2018, the complaint came to be dismissed. The learned counsel would contend that he may be given an opportunity as the amount involved is Rs.2,50,000/-.

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On perusing the records, no illegality or perversity is found in the order of the learned Magistrate

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and the learned Magistrate is justified in dismissing the complaint for non appearance of the complainant. It is for the complainant to explain for his non-appearance on 19.09.2018 in the morning session as well as in the afternoon session. Even the counsel did not represent. Hence, the learned Magistrate without any alternative dismissed the complaint.

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However, the learned counsel for the

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appellant would submit that he may be given an opportunity to substantiate his case. By giving an opportunity to the appellant, no injustice would not be caused to the respondent, as the respondent would get an opportunity to cross examine the complainant / appellant to substantiate his defence. However, the complainant/ appellant is guilty of latches and he is required to be saddled with costs. Considering these aspects, the appeal needs to be allowed by remitting back the matter to the learned Magistrate by setting

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7 - NC: 2023:KHC:44679 CRL.A No. 304 of 2020

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aside the impugned order dated 19.09.2018 subject to payment of costs. Accordingly, 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 19.09.2018 passed by LVIII Additional Chief Metropolitan Magistrate, Mayo Hall Unit Bangalore in C.C.No.58935/2017 is set aside.

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(iii) The matter is restored to its original file subject to appellant / complainant depositing Rs.2,500/before the learned Magistrate on the date of appearance towards cost incurred by the State.

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(iv) The appellant shall appear before the learned Magistrate on 19.01.2024 at 10.30 a.m. without waiting for court notice.

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(v) On the same day, he shall deposit the costs of Rs.2,500/- before the court and he shall take steps against respondent for issuance of notice.

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(vi) The learned Magistrate is directed to proceed from the stage of crossexamination and then dispose of the matter in accordance with law.

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(vii) The Registry is directed to forward a copy of this order to the trial court immediately for compliance.

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Sd/JUDGE

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List No.: 1 Sl No.: 6

Sri Banuprakash C v. Sri Srikanth C

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Sri Banuprakash C v. Sri Srikanth C

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