Eureka Forbes Limited Vs Reaachout Networks

THIS CRL.A IS FILED U/S 378(4) CR.PC (FILED U/S 419(4) OF BNSS) PRAYING TO SETTING ASIDE THE ORDER AND JUDGEMENT DT 16.07.2025 PASSED BY THE HON'BLE XXVIII ADDL.CJM IN CC NO.18209/2019 AND RESTORE THE SAID COMPLAINT AND AFFORD AN OPPORTUNITY TO THE APPELLANT TO LEAD EVIDENCE AND/OR BE CROSS EXAMINED BY THE TRIAL COURT.

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

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CORAM: HON'BLE MR. JUSTICE G BASAVARAJA

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ORAL JUDGMENT

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The appellant/complainant has preferred this appeal against the order dated 16.07.2025 passed in CC.No.18209/2019 by the XXVIII Additional Chief Judicial Magistrate, Bengaluru City (for short 'the trial Court).

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NC: 2025:KHC:48690 CRL.A No. 1901 of 2025

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HC-KAR

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

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Brief facts leading to this appeal are that, the complainant has filed a complaint against the accused for the offence under Section 138 of Negotiable Instruments Act. The case was registered in PCR.No.15226/2017. After taking cognizance, case was registered in CC.No.18209/2019. Thereafter summons was issued to the accused. Same was returned as not claimed. Thereafter, NBW was issued on 15.06.2023. NBW was again issued to the accused and case was posted to 21.07.2023. NBW was not executed. Before execution of NBW, the trial Court has passed an order on 21.10.2023. Same reads as under:

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"Case called out. Accused absent.

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Sri. HKKB advocate files vakalath, copy of SAP entry of the resignation request submitted by the previous AR of Mr. Nagesh. B.S dated 05.12.2019, copy of Power of Attorney with Board resolution, affidavit

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NC: 2025:KHC:48690 CRL.A No. 1901 of 2025

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HC-KAR

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along with application for substitution of complainant seeking permission of this court to substitute authorized representative Mr. Vignesh Ravi, in place of Mr. Nagesh.B.S.

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This application is accompanied with the affidavit of the new Authorized representative of the complainant company, wherein he has stated that the complainant is a company duly registered under the provisions of companies act and a juridical person prosecuting the accused for the offence u/s 138 of N.I Act before this court through a duly authorized person.

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Further stated that the above said company was being filed by complainant company through Sri Nagesh B.S who was authorized to sign, verify and depose on behalf of complainant company. Further stated that said Sri Nagesh B.S has been resigned from the complainant company on 04.12.2019. Further, Mr. Vignesh Ravi, who is officer (Legal) of the complainant company is the new authorized representative of the complainant company duly authorized by Power of Attorney dated 11.04.2023 to sign, verify and depose on behalf of the

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'plaintiff company'. Further, he is well aware of the activities and business of the company as well as the

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NC: 2025:KHC:48690 CRL.A No. 1901 of 2025

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HC-KAR

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facts of the present case. Hence, he prays to allow the application.

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The accused is absent. Hence, objection taken as not filed.

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The learned counsel for the complainant has submitted that this case is filed by the complainant against accused for the offence punishable under section 138 of NI Act. If the application is allowed, no hardship or loss would be caused to accused, on the other hand if the application is not allowed, the complainant would be put to great hardship, agony, and loss, since the money involved is the public money. Hence, he prays to allow the application.

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Heard and perused.

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This is a private complaint filed by the complainant u/s 200 of Cr.PC against the accused for the offence punishable under section 138 of NI Act.

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This is case in initial stage. Further if application is allowed, no harm or prejudice would be caused to the accused. If application is not allowed definitely the complainant will be put to great hardship and irreparable loss.

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With these reasons, I proceed to pass the following:

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NC: 2025:KHC:48690 CRL.A No. 1901 of 2025

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HC-KAR

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ORDER :

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Substitution application filed by the counsel for the complainant is hereby allowed and thereby counsel for the complainant is permitted to carry out amendment. For amended complaint.

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Call on: 15.11.2023."

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On 15.11.2023, case was adjourned to file amended

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complaint and posted the matter to 19.12.2023. On 19.12.2023, case was adjourned to 24.01.2024. On 24.01.2024, case was adjourned to 14.02.2024. On 06.02.2024, advocate for complainant has filed application

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under section 309 of Cr.P.C. On the same date, complainant has filed amended complaint. Then case was posted to 14.02.2024 and thereafter, case was posted to 28.03.2024. The case was being adjourned from time-totime till 16.07.2025. On that day, the trial Court has passed the following order:

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"Complainant absent. Counsel for complainant absent. No representation. Already sufficient time was granted to complainant to adduce evidence. But till today neither complainant adduced evidence

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HC-KAR

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nor appeared before this court. It seems that complainant is not deligent in prosecuting the case. Hence complaint of the complainant is hereby dismissed for non-prosecution."

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Being aggrieved by this order, the appellant has preferred the present appeal.

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On perusal of this order sheet, it is crystal clear that

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the accused has not appeared before the trial Court. However, on 19.06.2025 the trial Court has passed an order that accused was absent, no EP filed. The order sheet dated 24.06.2025 reveals that accused was absent. The order sheets dated 24.06.2025, 01.07.2025 and 05.07.2025 reveal that accused remained absent. Trial Court has not issued summons to the accused. Summons is not executed. Before appearance of the accused, trial Court has blindly posted the case for evidence, without application of mind. Finally, on 16.07.2025 trial Court has passed this impugned order. In this regard, this Court has called for the explanation from the concerned Presiding Officer. The Learned Magistrate has submitted her written

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NC: 2025:KHC:48690 CRL.A No. 1901 of 2025

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HC-KAR

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explanation to this Court vide Letter No.28 ACJM/151/2025 dated 11.11.2025 in which it is stated as under:

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"In obedience to your oral order dated: 04.11.2025 on I.A-1/2025 filed in Crl.A.No.1901/2025 the Hon'ble High Court of Karnataka. I respectfully submit report as follows:

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I have assumed the charge of this court on 02.06.2025. When I was transferred to this court the total pendency of the this court 6700 cases and out of the said pendency 3500 cases were transferred to 53^rd ACJM Court by this court. On verification of the entire order sheet in CC.No.18209/2019 on the file of 28th ACJM court it appears that the accused not at all appeared before this court even after repeated issuance of summons and NBW. NBW issued against accused returned as un-executed. When the case was posted for steps on 21.10.2023, the counsel for the complainant filed amended application for substitution of complaint and same was allowed and case was posted for furnishing amended complaint on 15.11.2023.

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I submit that, thereafter on 06.02.2024 the counsel for complainant filed amended complaint and case was posted for steps on 28.03.2024. On 28.03.2024

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HC-KAR

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NBW was issued against accused as per the request of complainant and posted the matter on 09.05.2024. On 09.05.2024 NBW issued against accused returned as unexecuted for want of correct address of accused. Thereafter the case was posted for steps on 21.06.2024, 26.07.2024, 05.10.2024, 28.11.2024, 16.01.2025, 04.02.2025, 17.03.2025, 05.04.2025. On 05.04.2025 when the case was posted for taking steps as last chance at that time Smt.R.N advocate filed Vakalath for complainant along with application for substitution of complainant. The same was allowed on the same day and posted the matter for furnishing amended complaint on 28.05.2025, 06.06.2025 and 16.06.2025. On those hearing dates neither complainant nor counsel for complainant appeared before this court. On 19.06.2025 when the matter was posted for furnishing amended complaint for last chance by oversight the case was posted for complaint evidence instead of taking steps.

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I submit that, thereafter the case was posted for complainant evidence on 16.07.2025 the complaint is dismissed for non-prosecution. This court has misleaded by the order dated: 19.06.2025 and posted the matter for complainant evidence instead of furnishing of amended complaint and steps. On 24.06.2025 the complainant and counsel for

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HC-KAR

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complainant present before this court and prayed time for complainant evidence. Though the complainant and counsel for complainant very much present before this court instead of submitting before this court that the accused has not yet appeared in this court they sought time for complainant evidence and this court has misleaded again by the submission of the complainant counsel and posted the matter for complainant evidence. The dismissal of the case for non-prosecution is not intention one but it was by misleading by the complainant counsel and order sheet dated: 19.06.2024.

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In future I will be very careful while hearing the advocates in any matters. My explanation may kindly be accepted and obliged sir. Sorry for the inconvenience caused in this regard."

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After receiving the explanation, this Court has passed an order that the learned ACJM has not submitted proper explanation. Same is contrary to the Order dated 16.07.2025. Again explanation was called for submitting false explanation before this Court. Thereafter, the learned Presiding Officer has submitted another explanation stating that by mistake she has passed this impugned

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HC-KAR

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order and she has unconditionally tendered her apology

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for the error committed.

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On perusal of the entire order sheet, it is crystal clear that the Learned Magistrate has not followed the proper procedure in conducting this case and passed the impugned order blindly and mechanically, which is not sustainable under law. The Learned Magistrate shall not commit such errors or mistakes in future.

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