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M/S Gilani Enterprises Vs M/S General Engineering — Cheque Dishonour | Karnataka HC (2025)

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Karnataka HC
2025
M/S Gilani Enterprises Vs M/S General EngineeringM/S Gilani Enterprises v. M/S General Engineering

Allowed¶43

M/S Gilani Enterprises v. M/S General Engineering

Negotiable Instruments Act, 1881 – Section 138 – dismissal of complaint for non-prosecution

Karnataka HC13 Feb 2025CRL.A/2102/2018

Case brief

AI extract

What is this about?

CRL.A No. 2102 of 2018, High Court of Karnataka at Bengaluru, decided 13.02.2025 by Justice Shivashankar Amaranavar. Restoration of a Section 138 Negotiable Instruments Act complaint (C.C.No.449/2016, Gilani Enterprises v. General Engineering Infrabuild Pvt Ltd & Anr.) dismissed for non-prosecution on 15.06.2018 by XXIV A.S.C.J and XXII A.C.M.M (SCCH-26), Bengaluru. Appeal under Section 378(4) Cr.P.C. allowed: complainant's absence before the transferee Court held bonafide because the case, earlier stayed in Crl.Misc.No.3208/2017 (order dt. 19.04.2017) and transferred by notification No.ADM 1/19/2017 dt. 20.11.2017, was taken up on 01.01.2018 instead of the adjourned date 31.12.2017. Impugned order set aside; case restored; parties to appear before Trial Court on 10.03.2025 without notice. Keywords: non-prosecution, restoration, bonafide absence, transfer of complaint, SCCH-26.

What did the court decide?

Impugned order dated 15.06.2018 in C.C.No.449/2016 set aside and the case restored; appellant - complainant and respondent - accused directed to appear before the Trial Court on 10.03.2025 without awaiting any Court notice; Registry directed to send the Trial Court records along with a copy of the order to the Trial Court forthwith. ¶43

Why is it important?

The absence of the appellant - complainant before the transferee Court was for bonafide reasons, as he was not aware of the criminal case being taken up on 01.01.2018 following its transfer. ¶39

What the court decided

AI extract

Outcome

Impugned order dated 15.06.2018 in C.C.No.449/2016 set aside and the case restored; appellant - complainant and respondent - accused directed to appear before the Trial Court on 10.03.2025 without awaiting any Court notice; Registry directed to send the Trial Court records along with a copy of the order to the Trial Court forthwith.

Issue for consideration

Whether the order dated 15.06.2018 dismissing C.C.No.449/2016 (a complaint under Section 138 of the N.I. Act) for non-prosecution on account of the complainant's absence ought to be set aside and the case restored.

Court's answer

The absence of the appellant - complainant before the transferee Court was for bonafide reasons, as he was not aware of the criminal case being taken up on 01.01.2018 following its transfer.

Ratio / Principle

In view of the bonafide absence of the complainant, the impugned order dated 15.06.2018 dismissing the complaint for non-prosecution is liable to be set aside and C.C.No.449/2016 restored.

Detailed headnote1 paragraphs

Negotiable Instruments Act, 1881 – Section 138 – dismissal of complaint for non-prosecution – Criminal Appeal under Section 378(4) Cr.P.C. by the complainant – C.C.No.449/2016 pending before XLII A.C.M.M., Bengaluru was stayed by order dated 19.04.2017 in Crl.Misc.No.3208/2017 and thereafter transferred vide notification No.ADM 1/19/2017 dated 20.11.2017 of C.M.M, Bengaluru to XXIV A.S.C.J and XXII A.C.M.M (SCCH-26), Bengaluru – case adjourned to 31.12.2017 was taken up by the transferee Court only on 01.01.2018, of which the complainant was unaware – complainant absent on subsequent dates – absence held to be for bonafide reasons, not malafide – order dated 15.06.2018 dismissing the complaint for non-prosecution set aside and C.C.No.449/2016 restored – parties directed to appear before the Trial Court on 10.03.2025 without awaiting Court notice.

A

1 - NC: 2025:KHC:6411 CRL.A No. 2102 of 2018

IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13^TH DAY OF FEBRUARY, 2025

BEFORE

THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR CRIMINAL APPEAL NO. 2102 OF 2018

BETWEEN:

M/S. GILANI ENTERPRISES NO.22/1, 107, SHILLY PLAZA K.KAMARAJ ROAD BANGALORE-560 042 REPRESENTED BY ITS MANAGING PARTNER SRI. ALNASIR ABDUL AZIZ GILANI

…APPELLANT

(BY SMT. ANITHA R, ADVOCATE FOR SRI. T.V. VIJAY RAGHAVAN, ADVOCATE)

AND:

Digitally signed by HEMAVATHY GANGABYRAPPA Location: HIGH COURT OF KARNATAKA

M/S GENERAL ENGINEERING INFRABUILD PVT LTD NO.665, 38^TH CROSS, 15^TH MAIN 4^TH T BLOCK, JAYANAGAR BANGALORE-41 REPRESENTED BY ITS DIRECTOR SMT. SAVITHA G ANANTH

SMT. SAVITA G. ANANTH NO.48/A, "SRUSTI" C/O B.K. RAJENDRAN 11^TH CROSS, 6^TH MAIN ROAD 3^RD PHASE, J P NAGAR BANGALORE-560 078

2 - NC: 2025:KHC:6411 CRL.A No. 2102 of 2018

PRESENTLY R/AT NO.47/A, AKSHYA NANJUDESWARA LAYOUT J.P.NAGAR 5^TH PASHE BANGALORE-560 078

…RESPONDENTS

(BY SMT. ARYA KUMAR, ADVOCATE FOR SRI. AJAY J.N, ADVOCATE FOR R2; VIDE ORDER DT.20.06.2023 - NOTICE TO R1 IS HELD SUFFICIENT)

THIS CRL.A. IS FILED U/S.378(4) CR.P.C PRAYING TO SET ASIDE THE ORDER OF DISMISSAL FOR NONPROSECUTION AS PER ORDER DATED 15.06.2018 IN C.C.NO.449/2016 ON THE FILE OF THE XXIV A.S.C.J., AND XXII A.C.M.M.,(SCCH-26) BANGALORE AND TO RESTORE THE CASE C.C.NO.449/2016 TO THE FILE OF THE XXIV A.S.C.J., AND XXII A.C.M.M.,(SCCH-26) BANGALORE FOR RECORDING OF FURTHER PROCEEDINGS FROM THE STAGE OF THE COMPLAINANTS EVIDENCE AND TO DISPOSE OF THE CASE IN ACCORDANCE WITH LAW.

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

CORAM: HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR

ORAL JUDGMENT

This appeal is filed by the appellant – complainant challenging the order dated 15.06.2018 passed in C.C.No.449/2016 by the XXIV A.S.C.J and XXII A.C.M.M

Court (SCCH-26), Bengaluru and to restore C.C.No.449/2016.

3 -

NC: 2025:KHC:6411 CRL.A No. 2102 of 2018

The appellant is the complainant and the respondent is the accused in C.C.No.449/2016 registered for the offence under Section 138 of the Negotiable Instruments Act, 1881 (for short hereinafter referred to as “N.I.Act”) . The said criminal case was pending on the file of XLII A.C.M.M., Bengaluru. The said criminal case was listed on 31.10.2017 awaiting the order to be passed in Crl.Misc.No.3208/2017 by the Principal City Civil and Sessions Judge, Bengaluru. There was a stay order in Crl.Misc.No.3208/2017 dated 19.04.2017 for further proceedings in C.C.No.449/2016. Therefore, case came to be adjourned awaiting orders from 08.05.2017, 30.06.2017, 31.07.2017, 31.08.2017, 03.10.2017 and 31.10.2017. On 31.10.2017, the matter was called and it was adjourned to 31.12.2017 awaiting orders. In the meantime, case came to be transferred vide notification No.ADM 1/19/2017 dated 20.11.2017 of C.M.M, Bengaluru to XXIV A.S.C.J and XXII A.C.M.M (SCCH-26), Bengaluru. The matter was taken up before the transferee Court on 01.01.2018 and it was adjourned for recording plea

4 -

NC: 2025:KHC:6411 CRL.A No. 2102 of 2018

to 02.02.2018. On 22.02.2018, counsel for the respondent

accused filed a memo for taking up the matter on 07.04.2018, as the other two criminal cases which were transferred to that Court were ordered to be listed on 07.04.2018. On 07.04.2018, the case was listed for recording plea and noting absence of the respondent – accused, the matter was adjourned and it was adjourned for recording the complainant’s evidence to 02.05.2018. Thereafter, the matter came to be adjourned to 08.06.2018. On 15.06.2018 noting the absence of the appellant - complainant, the complaint came to be dismissed for non-prosecution. The said order has been challenged by the appellant - complainant in this appeal.

Heard learned counsel for the appellant - complainant and learned counsel for the respondent - accused.

Learned counsel for the appellant - complainant would contend that as per the order sheet dated 31.10.2017, the said criminal case came to be adjourned

5 - NC: 2025:KHC:6411 CRL.A No. 2102 of 2018

to 31.12.2017. In the meantime, case came to be transferred by notification dated 20.11.2017 to SCCH-26, Bengaluru. The matter was not taken up on 31.12.2017 and it was taken up on 01.01.2018 and the appellant - complainant was not aware of taking up the said case on 01.01.2018. Therefore, the appellant – complainant could not present on the subsequent dates. The absence of the appellant - complainant on 15.06.2018 is not malafide but for the bonafide reason. With this, she prayed to allow the appeal and restore the criminal case.

Learned counsel for the respondent – accused would contend that the appellant - complainant was aware of transfer of the criminal case to S.C.C.H-26, Bengaluru and his absence on the dates of hearing before the transferee Court are for malafide reasons. With this, she prayed to dismiss the appeal.

There was stay of further proceedings in C.C.No.449/2016 by the order dated 19.04.2017 passed in Crl.Misc.No.3208/2017 by the Principal City Civil and

6 - NC: 2025:KHC:6411 CRL.A No. 2102 of 2018

Sessions Judge, Bengaluru. The stay order has been noted in the order sheet dated 25.04.2017. Thereafter, the matter came to be adjourned to 08.05.2017, 30.06.2017, 31.07.2017, 31.08.2017, 03.10.2017 and 31.10.2017. On 31.10.2017, the matter came to be adjourned to 31.12.2017 awaiting orders. In the

meantime, by notification dated 20.11.2017 of C.M.M, Bengaluru bearing No.ADM 1/19/2017, the case came to be transferred to XXIV A.S.C.J and XXII A.C.M.M (SCCH26), Bengaluru. The said case which was adjourned to 31.12.2017 was not taken up in the transferee Court on

that day and it was taken up on 01.01.2018. The appellant - complainant was not aware of taking of the said criminal case on 01.01.2018 by the transferee Court. Therefore, the appellant - complainant was not present on 01.01.2018 and subsequent dates ie., on 02.02.2018, 22.02.2018, 07.04.2018, 02.05.2018, 08.06.2018 and 15.06.2018. Therefore, the absence of the appellant - complainant is for the bonafide reasons that he was not aware of taking up the matter before the transferee Court.

7 - NC: 2025:KHC:6411 CRL.A No. 2102 of 2018

Considering the said aspect, the impugned order dated 15.06.2018 dismissing the complaint of the appellant - complainant for non-prosecution requires to be set-aside and C.C.No.449/2016 requires to be restored. In the result, the following;

ORDER

The appeal is allowed . The impugned order dated 15.06.2018 passed in C.C.No.449/2016 by the XXIV A.S.C.J and XXII A.C.M.M (SCCH-26), Bengaluru is set-aside and C.C.No.449/2016 is restored. The appellant - complainant and the respondent - accused are directed to appear before the Trial Court on 10.03.2025 without awaiting any Court notice.

Registry is directed to send the Trial Court records along with a copy of this order to the Trial Court forthwith.

Sd/(SHIVASHANKAR AMARANNAVAR) JUDGE

GH List No.: 1 Sl No.: 20.2

Issues for consideration

1 issue framed by the court

AI extract

1.
Whether the order dated 15.06.2018 dismissing C.C.No.449/2016 (a complaint under Section 138 of the N.I. Act) for non-prosecution on account of the complainant's absence ought to be set aside and the case restored.¶17
The court held
The absence of the appellant - complainant before the transferee Court was for bonafide reasons, as he was not aware of the criminal case being taken up on 01.01.2018 following its transfer.ratio¶39

Statutes considered

2 provisions across 2 enactments

AI extract

Negotiable Instruments Act, 1881Section 138¶25
Code of Criminal ProcedureSection 378(4)¶17

Procedural history

How this case reached the court

AI extract

Order under challenge
Order dated 15.06.2018 dismissing C.C.No.449/2016 (complaint under Section 138 N.I. Act) for non-prosecution on account of the complainant's absence¶29
XXIV A.S.C.J and XXII A.C.M.M (SCCH-26), Bengaluru · 15.06.2018
Prior proceeding
C.C.No.449/2016 registered for the offence under Section 138 of the Negotiable Instruments Act, 1881 and pending on the file of XLII A.C.M.M., Bengaluru.¶25
Prior proceeding
Stay of further proceedings in C.C.No.449/2016 by order dated 19.04.2017 in Crl.Misc.No.3208/2017 passed by the Principal City Civil and Sessions Judge, Bengaluru; case adjourned on several dates awaiting orders.¶25
Prior proceeding
Transfer of C.C.No.449/2016 vide notification No.ADM 1/19/2017 dated 20.11.2017 of C.M.M, Bengaluru to XXIV A.S.C.J and XXII A.C.M.M (SCCH-26), Bengaluru.¶25
Prior proceeding
Case adjourned to 31.12.2017 was not taken up by the transferee Court on that day but was taken up on 01.01.2018; the complainant, being unaware, remained absent on subsequent dates until dismissal for non-prosecution on 15.06.2018.¶38

Parties & counsel

AI extract

appellant
M/S. GILANI ENTERPRISES, BANGALORE, REPRESENTED BY ITS MANAGING PARTNER SRI. ALNASIR ABDUL AZIZ GILANI¶6
SMT. ANITHA R, SRI. T.V. VIJAY RAGHAVAN
respondent
M/S GENERAL ENGINEERING INFRABUILD PVT LTD, BANGALORE, REPRESENTED BY ITS DIRECTOR SMT. SAVITHA G ANANTH¶11
respondent
SMT. SAVITA G. ANANTH¶12
SMT. ARYA KUMAR, SRI. AJAY J.N

Coram

AI extract

Shivashankar Amaranavarauthor¶19

Case details

As recorded by the court registry

Court: Karnataka HC
Decided on: 13 Feb 2025 · February
Registered: 28 Nov 2018
Case no.: CRL.A/2102/2018
CNR: KAHC010236152018
Topic: Cheque Dishonour
Bench: Shivashankar Amarannavar
Disposal: ALLOWED
Case type: CRL.A

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Cite this judgement

M/S Gilani Enterprises v. M/S General Engineering, CRL.A/2102/2018 (KA), decided on 13 February 2025.

The High Court of Karnataka publishes no neutral citation for this judgement — cite it by case number and date of decision.

Statutes2

Negotiable Instruments Act, 1881Section 138
Code of Criminal ProcedureSection 378(4)

View all statutes

Procedural history5

Order dated 15.06.2018 dismissing C.C.No.449/2016 (complaint under Section 138 N.I. Act) for non-prosecution on account of the complainant's absenceXXIV A.S.C.J and XXII A.C.M.M (SCCH-26), Bengaluru · 15.06.2018
C.C.No.449/2016 registered for the offence under Section 138 of the Negotiable Instruments Act, 1881 and pending on the file of XLII A.C.M.M., Bengaluru.
Stay of further proceedings in C.C.No.449/2016 by order dated 19.04.2017 in Crl.Misc.No.3208/2017 passed by the Principal City Civil and Sessions Judge, Bengaluru; case adjourned on several dates awaiting orders.

View full history

Bench / Coram

Shivashankar Amaranavar

Parties & counsel