Allowed

Sri R Narayanappa v. Sri Srinivasa

Karnataka HC20 Mar 2024CRL.A/1760/2022

Case brief

AI extract

What is this about?

Appeal under Section 378(4) Cr.P.C against dismissal of a Section 138 NI Act complaint for non-prosecution after repeated adjournments. The complainant attributed non-appearance to ill health and COVID-19. Holding the complaint was not decided on merits, the High Court allowed the appeal, set aside the dismissal and restored the complaint for trial on merits.

What the court decided

AI extract

Sri R Narayanappa Vs Sri Srinivasa — Cheque Dishonour | Karnataka HC (2024)

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CRL.A No. 1760 of 2022 NC: 2024:KHC:11346

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 20^TH DAY OF MARCH, 2024

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BEFORE

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THE HON'BLE MS JUSTICE J.M.KHAZI CRIMINAL APPEAL NO.1760 OF 2022

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BETWEEN:

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SRI R NARAYANAPPA S/O RAMAIAH AGED ABOUT 64 YEARS R/AT KUMBARPET, MALUR TOWN, KOLAR DISTRICT, PIN - 563 130

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…APPELLANT

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(BY SRI. ANAND R V, ADVOCATE)

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AND:

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SRI SRINIVASA S/O KRISHNAPPA AGED ABOUT 36 YEARS R/AT PURASANAHALLI VILLAGE KASABA HOBLI, MALUR TALUK KOLAR DISTRICT - 563 130

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Digitally signed by REKHA R Location: High Court of Karnataka

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…RESPONDENT

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(BY SRI. MUNISWAMY GOWDA S G, ADVOCATE)

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THIS CRL.A IS FILED UNDER SECTION 378(4) OF CR.P.C PRAYING TO a) SET ASIDE THE IMPUGNED ORDER PASSED BY THE HON'BLE PRINCIPAL CIVIL JUDGE AND JMFC AT MALUR IN C.C.NO.459/2018 DATED 17.03.2022 IN ACQUITTING THE ACCUSED/RESPONDENT HEREIN FOR THE OFFENCE PUNISHABLE UNDER SECTION 138 OF NI ACT AND CONVICT THE RESPONDENT TO THE 138 OF NI ACT; b) GRANT SUCH OTHER RELIEF/S AS THIS HON'BLE COURT DEEMS FIT AND PROPER IN THE FACTS AND CIRCUMSTANCES OF THE CASE TO MEET THE ENDS OF JUSTICE AND EQUITY.

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

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CRL.A No. 1760 of 2022 NC: 2024:KHC:11346

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JUDGMENT

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Being aggrieved by the dismissal of the complaint filed by him under Section 200 Cr.P.C against the respondent/accused for the offence punishable under Section 138 of Negotiable Instrument (for short "N.I. Act"), appellant who is complainant has filed this appeal under Section 378(4) of Cr.P.C.

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For the sake of convenience the parties are referred to by their rank before the trial Court.

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It is the case of the complainant that he and accused are close friends. At the request of accused, he has lent hand loan of Rs.4 lakhs. In this regard accused issued a cheque for Rs.4 lakhs. However, when presented for encashment, it was dishounoured as "Funds insufficient". After issuing legal notice and on failure of accused to pay the amount due under the cheque, complaint is filed.

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After due service of summons, accused appeared before the trial Court and secured bail. He

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CRL.A No. 1760 of 2022 NC: 2024:KHC:11346

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contested the matter by pleading not guilty and the case was posted for complainant's evidence.

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Complainant is aged 64 years. Due to ill health complainant was not able to appear before the Court and give evidence on 17.01.2020, 23.12.2020, 17.02.2021, 19.08.2021, 21.09.2021 and 17.03.2022. During this period complainant was suffering from severe skin allergy and took treatment at Koshys Hospital, Bengaluru. Due to COVID-19 Pandemic also he was unable to appear. On 17.03.2022, the trial Court has dismissed the complaint for non-prosecution. The non-appearance of complainant was not intentional. He is having a good case on merit and hence, the appeal.

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After due service of notice, respondent/accused has appeared through counsel and contested the matter.

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Heard and perused the record.

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Thus, complainant prosecuted the accused on

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the allegations that the cheque issued by him towards repayment of a sum of Rs.4 lakhs came to be dishonoured

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4 - CRL.A No. 1760 of 2022 NC: 2024:KHC:11346

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for funds insufficient and despite due service of legal notice, accused failed to repay the same. However, the trial Court dismissed the complaint on 17.03.2022, on the ground that complainant is not interested in prosecuting the complaint, as he has failed to lead evidence despite granting several adjournments.

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According to the complainant during the relevant point of time he was under treatment and on account of COVID-19 also, he could not prosecute the complaint. To evidence the said fact, complainant has produced photocopies of cash bills and prescription. Though the reason assigned by the complainant are not very convincing, the fact remains that the complaint is not decided on merits. The complainant deserves one more opportunity to prove the allegations against accused. It would not cause any prejudice to the accused as he would get an opportunity to defend himself and accordingly, the following:

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CRL.A No. 1760 of 2022 NC: 2024:KHC:11346

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ORDER

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(i) Appeal is allowed.

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(ii) The impugned order dated 17.03.2022 passed in C.C.No.459/2018 on the file of Prl.Civil Judge & JMFC.,Malur is set aside.

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(ii) Both the complainant and accused are directed to appear before the trial Court on 15.04.2024 without waiting for further notice from the trial Court.

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(iii) The trial Court is directed to decide the case in accordance with law, after providing reasonable opportunity to both parties.

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(iv) Of course, if on 15.04.2024, respondent/accused fails to appear before the Court, the trial Court is at liberty to take coercive steps against him for securing his presence.

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In view of disposal of appeal, all pending applications are also disposed of, as no further orders is required.

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Sd/JUDGE

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List No.: 1 Sl No.: 46

Sri R Narayanappa v. Sri Srinivasa

Case brief

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What the court decided

Sri R Narayanappa v. Sri Srinivasa

Case brief

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