Sri. J. R. Krishna Murthy Vs Sri. K. Ramesh

THIS CRL.A IS FILED U/S.378(4) OF CR.P.C PRAYING TO ALLOW THIS APPEAL BY SETTING ASIDE THE ORDER DATED 13.07.2023 PASSED IN C.C.NO.33444/2023 BY XII A.C.M.M BENGALURU.

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THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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NC: 2025:KHC:8081 CRL.A No. 1713 of 2023

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CORAM: HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR

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ORAL JUDGMENT

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This appeal is filed by the complainant challenging the order dated 13.07.2023 passed in C.C.No.33444/2018 by the XII Additional Chief Metropolitan Magistrate, Bengaluru. The appellant is complainant and the respondent is accused. The case has been registered against the respondent –accused for offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as “N.I Act” for brevity)

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Heard learned counsel for the appellant and learned counsel for the respondent.

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The appellant –complainant has initiated proceedings against the respondent –accused for offence punishable under Section 138 of the N.I Act and it is pending in C.C. No.33444/2018 on the file of the XII Additional Chief Metropolitan Magistrate, Bengaluru. The said case was posted on 30.06.2023 for cross examination of P.W.1. On that day, P.W.1 was absent and there was

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no representation on complainant side. The Court has ordered to issue Court notice to the complainant and the matter is listed on 13.07.2023. On 13.07.2023 the complainant was absent. The trail Court has noted the absence of the complainant inspite of service of Court notice and dismissed the case for non-prosecution. The said order dated 13.07.2023 has been challenged by the complainant in this appeal.

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Learned counsel for the appellant would contend that the complainant was present on that date and the Court of XII Additional Chief Metropolitan Magistrate, Bengaluru was vacant and matters were taken up before the incharge Court. He submits that the complainant enquired with the Bench Clerk and came to know that incharge Court is not taking up evidence matters. Therefore, he could not be present before the incharge Court when the matter is called up. With this, he prays to allow the appeal and restoration of the case.

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NC: 2025:KHC:8081 CRL.A No. 1713 of 2023

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Learned counsel for the respondent would

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contend that the complainant was aware that the matter will be called in the incharge Court. Inspite of that he was not present before the incharge Court and noting the same the trial Court has dismissed the case of the complainant. He further submits that unnecessarily the respondent – accused has been dragged before this Court challenging the impugned order and he has incurred expenses. He further submits that in case the Court come to conclusion to allow this appeal cost may be awarded to the respondent.

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Having heard leaned counsels, this Court has perused the impugned order and material placed on record.

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The case has been registered against the respondent –accused for offence punishable under Section 138 of the N.I Act in C.C.No.33444/2018 was pending on file of the XII Additional Chief Metropolitan Magistrate, Bengaluru. The XII Additional Chief Metropolitan

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Magistrate, Bengaluru was vacant and the said matter was taken up in the incharge Court on 30.06.2023 and 13.07.2023. On both dates the complainant was absent. On 30.06.2023 the Court has issued Court notice to the Complainant. The said Court notice has been served on the complainant. Inspite of service of notice, the complainant was not present on 13.07.2023 before the incharge Court. Noting the absence of the complainant, the incharge Court has dismissed the case of the complainant.

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The complainant in the affidavit filed in support of IA No.1/2023 and in appeal memo has stated that he was present on the date of the impugned order and could not be present before the incharge Court as the incharge Court was not taking up evidence matters. The complainant ought to be present before the incharge Court as complainant was served with the Court notice. The absence of the complainant before the incharge Court on the date of impugned order was for bonafide reason.

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Cheques are involved in the case are five and total amount

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of five cheques is Rs.33,00,000/- (rupees thirty three lakhs only). Considering the said aspect, the trial Court ought to have given another opportunity to the appellant – complainant. The appellant –complainant has made out case for setting aside the impugned order and restoration of criminal case. The respondent –accused has been unnecessarily dragged before this Court challenging the impugned order. Therefore, the appeal has to be allowed subject to payment of cost.

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