Allowed

L Shashidhar v. K R Raju

Karnataka HC1 Mar 2024CRL.A/1958/2016

Case brief

AI extract

What is this about?

A cheque dishonour complaint was dismissed for non-prosecution when the complainant missed the sworn-statement date, believing his case had been transferred to another court. The High Court allowed the appeal under Section 378(4) Cr.P.C, set aside the dismissal and restored the complaint for prosecution.

What did the court decide?

Dismissal order set aside; complaint restored; complainant to appear before trial court on 18.03.2024 and prosecute without unnecessary adjournments.

L Shashidhar Vs K R Raju — Cheque Dishonour | Karnataka HC (2024)

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CRL.A No. 1958 of 2016 NC: 2024:KHC:8602

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 1^ST DAY OF MARCH, 2024

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BEFORE

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THE HON'BLE MS JUSTICE J.M.KHAZI CRIMINAL APPEAL NO.1958 OF 2016

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BETWEEN:

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L SHASHIDHAR AGED ABOUT 53 YEARS S/O LATE T N LAKSHMINARAYANA SHASTRY R/AT D.NO.2875, 4^TH MAIN, CHAMUNDIPURAM, MYSURU DISTRICT - 570 004

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…APPELLANT

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(BY SRI. P NATARAJU, ADVOCATE)

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AND:

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Digitally signed by REKHA R Location: High Court of Karnataka

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K R RAJU AGED ABOUT 51 YEARS S/O K RAMAIAH R/AT D.NO.4565 BEHIND KABINI COLONY NEELAKANTA NAGAR, NANJANAGUDU, MYSURU DISTRICT - 571 301

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(RESPONDENT - SERVED)

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…RESPONDENT

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THIS CRL.A IS FILED UNDER SECTION 378(4) OF CR.P.C PRAYING TO SET ASIDE THE ORDER PASSED BY THE LEARNED IV ADDITIONAL I CIVIL JUDGE AND JMFC AT MYSURU IN P.C.R.NO.2434/2015 DATED 13.10.2016 AND MAYBE PLEASED TO RESTORE THE P.C.R.NO.2434/2015 ON ITS FILE HAS PRAYED FOR, BY ALLOWING THIS APPEAL, IN THE INTEREST 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. 1958 of 2016 NC: 2024:KHC:8602

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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 known to each other. At the request of accused he has extended hand loan of Rs.1,10,000/-. Accused agreed to repay the same within two months.

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However, inspite of repeated request and demand, accused failed to repay the same and ultimately, issued a cheque dated 07.02.2013. When presented for encashment it was dishounoured as "Payment stopped". After issuing legal notice and on failure of accused to pay the amount due under cheque, complaint is filed.

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CRL.A No. 1958 of 2016 NC: 2024:KHC:8602

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On 13.10.2016, it was posted for recording

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sworn statement of complainant. C.C.No.534/2015, which was filed by complainant was transferred to the Court of II Civil Judge and JMFC., Mysuru from the Court IV Addl. I Civil Judge and JMFC., Mysuru. On 13.10.2016, complainant and his counsel did not appear before the trial Court as they were under an impression that this case is also transferred to the Court of II Civil Judge and JMFC., Mysuru and were present in that Court. By the time they realize that the present case not transferred, it was dismissed for non prosecution. The absence of complainant and his counsel was not intentional and pray to allow the appeal, restore the complaint and permit the complainant to prosecute the same.

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Though duly served with notice,

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respondent/accused has failed to appear and contest the matter.

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Heard and perused the record.

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CRL.A No. 1958 of 2016 NC: 2024:KHC:8602

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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.1,10,000/- came to be dishonoured as "Payment stopped" and despite due service of legal notice, accused failed to repay the same. However, the trial Court dismissed the complaint on 13.10.2016, on the ground that complainant failed to appear and give his sworn statement, despite granting sufficient time.

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The order sheet reveal that complaint was filed on 04.04.2013 and till 13.10.2016, number of adjournments were granted to the complainant to give sworn statement. Ultimately, on 13.10.2016, the trial Court dismissed the complaint for non-prosecution. The complainant has claimed that at the relevant point of time, one more complaint filed by him i.e., C.C.No.534/2015 was transferred to the Court of II Civil Judge and JMFC., Mysuru from the Court of IV Addl. I Civil Judge and JMFC, Mysuru and they were under an impression that this case is also transferred to the said Court and in fact he and his

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CRL.A No. 1958 of 2016 NC: 2024:KHC:8602

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counsel were waiting in the Court of II Civil Judge and JMFC, Mysuru, but only C.C.No.534/2015 was called and the present case was dismissed for non prosecution and their absence was not intentional.

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By remaining absent before this Court, the accused has not challenged the reasons assigned by the complainant for not appearing before the trial Court. Moreover, the case is not decided on merit. Having regarding to the facts and circumstances of the case, this Court is of the considered opinion that complainant is entitled for reasonable opportunity to prove his case. 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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ORDER

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(i) Appeal is allowed.

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(ii) The impugned order dated 13.10.2016 passed in PCR.No.2434/2015 on the file of IV Addl. I Civil Judge & JMFC., Mysuru is set aside.

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CRL.A No. 1958 of 2016 NC: 2024:KHC:8602

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(ii) The complainant is directed to appear before the trial Court on 18.03.2024 without waiting for further notice from the trial Court.

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(iii) The complainant shall prosecute the complaint, without seeking unnecessary adjournments.

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

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Sd/JUDGE

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RR List No.: 1 Sl No.: 31

L Shashidhar v. K R Raju

Case brief

What is this about?

What did the court decide?

L Shashidhar v. K R Raju

Case brief

What is this about?

What did the court decide?

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