Allowed

Tippeswamy S/O Giriyappa Agadi v. Nagaraj S/O Hanappa Kakkaragol

Karnataka HC9 Jul 2024CRL.A/100134/2017

Case brief

AI extract

What is this about?

The High Court allowed the criminal appeal against the trial court's order rejecting an application for condonation of delay. Setting aside the impugned order, the court held that the 26-day delay was reasonable due to business travel abroad, thereby allowing the case to proceed.

What did the court decide?

Impugned order setting aside I.A. No.1 allowed; 26-day delay condoned; case remitted to trial court.

Tippeswamy S/O Giriyappa Agadi Vs Nagaraj S/O Hanappa… — Cheque Dishonour | Karnataka HC (2024)

¶1

¶2

NC: 2024:KHC-D:9427 CRL.A No. 100134 of 2017

¶3

IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 9^TH DAY OF JULY, 2024 BEFORE

¶4

THE HON'BLE MR JUSTICE G BASAVARAJA CRIMINAL APPEAL NO.100134 OF 2017 (A)

¶5

BETWEEN:

¶6

TIPPESWAMY S/O. GIRIYAPPA AGADI, AGED ABOUT 59 YEARS, OCC: BUSINESS, R/O: VINAYAK NAGAR, 2^ND MAIN, 2^ND CROSS, TQ: RANEBENNUR, DIST: HAVERI-581115.

¶7

…APPELLANT

¶8

(BY SRI N.R. KUPPELUR, ADVOCATE)

¶9

AND:

¶10

NAGARAJ S/O. HANAPPA KAKKARAGOL, AGE: MAJOR, OCC: AGRICULTURE, R/O: YAKALASAPUR VILLAGE, TQ: RANEBENNUR, DIST: HAVERI-581115.

¶11

…RESPONDENT

¶12

(BY SRI T.R. PATIL, ADVOCATE)

¶13

Digitally signed by VINAYAKA B V Location: HIGH COURT OF KARNATAKA

¶14

THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378 OF CR.P.C., 1973, SEEKING TO SET ASIDE THE P.C.NO.53/2015 ON THE FILE OF ADDL. CIVIL JUDGE AND ADDL. JMFC, RANEBENNUR, IMPUGNED ORDER DATED 31.12.2016 BY ALLOWING THIS CRIMINAL APPEAL AND ETC.,

¶15

THIS CRIMINAL APPEAL, COMING ON FOR ARGUMENTS,

¶16

THIS DAY, THE COURT DELIVERED THE FOLLOWING:

¶17

2 - NC: 2024:KHC-D:9427 CRL.A No. 100134 of 2017

¶18

JUDGMENT

¶19

The appellant-complainant has preferred this appeal

¶20

against the order passed by the learned Addl. Civil Judge and II Addl. JMFC., Ranebennur (for short, ‘Trial Court’) in P.C. No.53/2015 dated 31.12.2016.

¶21

Parties are referred to as per their ranking before the trial Court.

¶22

Brief relevant facts leading to this appeal are

¶23

that the accused borrowed Rs.1,00,000/- and agreed to repay the same amount in 50 installments. On the basis of the loan amount, the accused issued a cheque bearing No.723448 for Rs.76.568/- drawn at State Bank of Mysore, Ranebennur Branch, dated 15.12.2014 in favour of the complainant towards the loan amount payable to the complainant. When the said cheque was produced for encashment by the complainant, it returned with an endorsement "Funds Insufficient" in the accused account. Therefore on request of the accused, the complainant once again presented the same cheque for collection on

¶24

3 - NC: 2024:KHC-D:9427 CRL.A No. 100134 of 2017

¶25

24.01.2015 to the accused bank, but the banker returned with an endorsement "Funds Insufficient in the account on 27.01.2015. After that the complainant informed the accused to make an arrangement to pay the amount of Rs.76,568/-. Inspite of the request, the accused did not pay the cheque amount. Subsequently, on 26.02.2015 complainant issued legal notice to the accused through registered post, same was served on the accused on 28.02.2015, for which the accused did not replied nor he paid the cheque amount to the complainant. The complainant filed complaint on 23.04.2015 and there was a delay of 26 days, therefore, separate application i.e.I.A. No.1 was filed by the complainant for condonation of delay. The Trial Court issued notice on I.A. No.1 to the accused, for which, the accused appeared along with his counsel and filed objection to the application contending that the complainant has not made out any ground and sought for rejection of I.A. No.1. On hearing the arguments of both the sides, the Trial Court rejected the application filed under Section 5 of the Limitation Act and

¶26

4 - NC: 2024:KHC-D:9427 CRL.A No. 100134 of 2017

¶27

consequently the complaint filed under Sections 138 and 142 of the Negotiable Instrument Act was also dismissed.

¶28

Being aggrieved by the same, the complainant has preferred this appeal.

¶29

Sri.N.R.Kuppelur, learned counsel for appearing

¶30

for the appellant-complainant would submit that the impugned order passed by the Trial court rejecting I.A. No.1 filed for condonation of delay is contrary to law, facts and the same is liable to be set aside. He further submits

¶31

that the Trial Court committed error in rejecting the application and consequently dismissing the complaint without properly appreciating the bonafide reasons assigned by the appellant for condonation of delay. He submits that the appellant had health problem and had also gone to abroad on business tour and during that process, he was not able to approach his counsel and hence, the delay was caused in filing the complaint. On all these grounds, he prays to allow the appeal.

¶32

5 - NC: 2024:KHC-D:9427 CRL.A No. 100134 of 2017

¶33

Per contra , Sri.T.R.Patil, learned counsel appearing for the respondent-accused would submit that the complainant has not placed on record any material to support his contention that he was suffering from ill-health and he had gone to abroad on business tour. He further submits that the Trial Court has assigned proper reasons for rejection of I.A. No.1 which needs no interference. Thus, he prays for dismissal of the appeal.

¶34

Having heard the arguments on both the sides and on perusal of appeal papers, the following points would arise for consideration.

¶35

1) Whether the appellant-complainant has made out grounds to interfere with the impugned order dated 31.12.2016 passed by the Trial Court ?

¶36

2) What order?

¶37

My answer to the above points are as follows:

¶38

Point No.1 : In the Affirmative

¶39

Point No.2 : As per final order for the following

¶40

6 - NC: 2024:KHC-D:9427 CRL.A No. 100134 of 2017

¶41

REASONS

¶42

Point No.1 :- I have carefully examined the

¶43

materials placed before the Court. The complainant had filed application under Section 5 of the Limitation Act to condone delay of 26 days in filing the complaint. Along with the said application, he has filed affidavit in which he stated that he had filed complaint against the accused under Sections 138 and 142 of the NI Act and had issued notice through his counsel to the accused on 26.02.2015 and the same was served upon the accused on 28.02.2015 and thereafter, from 16.04.2015 to 22.04.2015 he was on business tour to Malaysia, hence he did not approach his counsel to file the complaint within a prescribed period, for which, delay of 26 days is caused in filing the complaint and on all these grounds he sought for allowing the application.

¶44

The accused has filed written objection contending that the application is not maintainable under law. The accused stated that the complainant has not

¶45

7 - NC: 2024:KHC-D:9427 CRL.A No. 100134 of 2017

¶46

produced any document to show that he was suffering from ill-health and he has also not produced any document

¶47

to prove that he had gone to Malaysia on business tour on 16.04.2015. On all these grounds, the accused sought for rejection of the application. The accused has not filed any counter affidavit along with statement of objection.

¶48

There is no ordinate delay in filing the complaint as the delay is of only 26 days in filing the complaint and in this regard, the complainant has assigned proper reasons.

¶49

It is settled principle of law that the power of the Court is discretionary and the word “in the interest of justice” should receive a liberal construction so as to advance a substantial justice.

¶50

Considering the facts of the case, the appellant

¶51

has made out sufficient cause to condone the delay of 26 days in filing the complaint filed under Sections 138 and 142 of the NI Act. Accordingly, I answer Point No.1 in the affirmative.

¶52

¶53

NC: 2024:KHC-D:9427 CRL.A No. 100134 of 2017

¶54

Point No.2 :- For the aforesaid reasons and

¶55

discussions, I proceed to pass the following:

¶56

ORDER

¶57

(i) The appeal is allowed .

¶58

(ii) The impugned order dated 31.12.2016 passed in P.C. No.53/2015 on I.A. No.1 by the learned Addl. Civil Judge and II Addl. JMFC., Ranebennur is set aside. Consequently, I.A. No.1 filed under Section 5 of the Limitation Act is allowed and delay of 26 days in filing the complaint is condoned.

¶59

(iii) The case is remitted back to the Trial Court to proceed with the case in accordance with law.

¶60

(iv) Registry to transmit the records along with a copy of this judgment to the Trial Court, forthwith.

¶61

RH/List No.: 1 Sl No.: 4

¶62

Sd/JUDGE

Tippeswamy S/O Giriyappa Agadi v. Nagaraj S/O Hanappa Kakkaragol

Case brief

What is this about?

What did the court decide?

Tippeswamy S/O Giriyappa Agadi v. Nagaraj S/O Hanappa Kakkaragol

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

Similar cases

State of Karnataka Vs Dundappa S/O. Chennabasappa Mali

State of Karnataka Vs Janardhan S/O Hosabu Patagar

State of Karnataka, Vs Raghavendra S/O Manohar Tandel

M.Balachandra Setty S/O M.. Rangaiah Setty Vs Mr.D.Rudrapathi S/O D. Ayyalappa

State of Karnataka Vs Basappa S/O Tipanna Kurpi

State of Karnataka Vs Kumara Swamy S/O Hulikuntappa