Allowed¶48

Arvind Kumar v. Mr Gautham Sajjanrajji Shankla

Karnataka HC19 Feb 2025CRL.A/441/2023

Case brief

AI extract

What is this about?

Section 138 NI Act; dismissal of complaint for non-prosecution; dismissal amounts to acquittal; maintainability of appeal under Section 378(4) Cr.P.C.; restoration of criminal case; summons returned un-served; process fee; dishonoured cheques Rs.41,52,960/- and Rs.52,73,600/-; C.C.No.56/2019; XVI Additional Chief Metropolitan Magistrate Bengaluru; Abhishek Mishra @ Pintu 2024:AHC:47637; CRL.A No. 441 of 2023; Shivashankar Amarannavar J; Karnataka High Court.

What did the court decide?

Impugned order dated 30.12.2022 passed in C.C.No.56/2019 by the XVI Additional Chief Metropolitan Magistrate, Bengaluru set aside and the criminal case restored; parties directed to appear before the Trial Court on 26.03.2025 without awaiting Court notice. ¶48

Arvind Kumar Vs Mr Gautham Sajjanrajji Shankla — Cheque Dishonour | Karnataka HC (2025)

What the court decided

AI extract

Outcome

¶48

Issue for consideration

Whether the appeal under Section 378(4) of Cr.P.C. is maintainable against an order dismissing the Section 138 complaint for non-prosecution, the respondent contending that the appeal is not maintainable and that the appeal-versus-revision question stands referred to a Larger Bench. +1 more

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Court's answer

The Trial Court having taken cognizance and registered the case against the respondent for the offence under Section 138 of the N.I. Act, the dismissal of the complaint for non-prosecution at the stage of taking steps for service of summons amounts to acquittal; therefore, the appeal filed under Section 378(4) of Cr.P.C. is maintainable.

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Ratio / Principle

Since the cheques involved in the case were drawn for a huge amount, the learned Magistrate ought to have granted another opportunity for taking steps for service of summons to the respondent-accused.

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Key takeaways

Considering the above aspect, the impugned order dated 30.12.2022 requires to be set aside and the criminal case requires to be restored.ratio¶44

Detailed headnote1 paragraphs

Complainant's appeal under Section 378(4) of Cr.P.C. against the order dated 30.12.2022 of the XVI Additional Chief Metropolitan Magistrate, Bengaluru in C.C.No.56/2019 dismissing his complaint against the respondent for offence under Section 138 of the Negotiable Instruments Act, 1881 for non-prosecution. Held: the Trial Court having taken cognizance, registered the case and ordered issuance of summons (which remained un-served), the dismissal of the complaint for non-prosecution amounted to acquittal, and the appeal under Section 378(4) of Cr.P.C. was maintainable. The two dishonoured cheques were drawn for Rs.41,52,960/- and Rs.52,73,600/-, and the learned Magistrate ought to have granted another opportunity for taking steps for service of summons to the respondent-accused. Appeal allowed; impugned order set aside; criminal case restored; parties directed to appear before the Trial Court on 26.03.2025 without awaiting Court notice. Coram: Hon'ble Mr Justice Shivashankar Amarannavar.

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1 - NC: 2025:KHC:7418 CRL.A No. 441 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 19^TH DAY OF FEBRUARY, 2025

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BEFORE

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THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR

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CRIMINAL APPEAL NO. 441 OF 2023

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BETWEEN:

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ARVIND KUMAR S/O BABULALJI TATED AGED ABOUT 69 YEARS PROP. M/S KANCHAN JEWELLERS NO.5, BABA MARKET, O.K.ROAD BEHIND RAJA MARKET BENGALURU-560 002

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…APPELLANT

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(BY SRI. SRIPAL J. SANGHVI, ADVOCATE)

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AND:

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Digitally signed by HEMAVATHY GANGABYRAPPA Location: HIGH COURT OF KARNATAKA

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MR. GAUTHAM SAJJANRAJJI SHANKLA S/O SRI. SAJJANRAJJI SHANKLA AGED ABOUT 66 YEARS RESIDING AT FLAT NO F-102 1^ST FLOOR, ETA GARDEN MAGADI ROAD BENGALURU-560 023

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…RESPONDENT

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(BY SRI. CHOKKAREDDY, ADVOCATE)

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THIS CRL.A IS FILED U/S.378(4) OF CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 30.12.2022 PASSED IN C.C.NO.56/2019 BY THE XVI ADDITIONAL CMM, BENGALURU DISMISSING THE COMPLAINT FILED BY THE APPELLANT AGAINST THE RESPONDENT FOR OFFENCE P/U/S.138 OF NI ACT FOR NON PROSECUTION.

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NC: 2025:KHC:7418 CRL.A No. 441 of 2023

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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 SHIVASHANKAR AMARANNAVAR

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ORAL JUDGMENT

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This appeal is filed by the complainant challenging the order dated 30.12.2022 passed in C.C.No.56/2019 by the XIV Additional Chief Metropolitan Magistrate, Bengaluru, whereunder the complaint filed by the appellant - complainant against the respondent for offence under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'N.I. Act' for short) has been dismissed for non-prosecution.

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Heard the learned counsel for the appellant and

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the learned counsel for the respondent.

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The appellant - complainant initiated

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proceedings against the respondent - accused for offence under Section 138 of the N.I. Act and a case has been registered against the respondent in C.C.No.56/2019 and

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3 - NC: 2025:KHC:7418 CRL.A No. 441 of 2023

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it was pending on the file of the XVI Additional Chief Metropolitan Magistrate, Bengaluru. After registering of a criminal case, summons were ordered to be issued to the respondent - accused. The summons issued to the respondent - accused have been returned un-served. The case was listed on 30.12.2022 awaiting the summons issued to the respondent - accused. Noting the absence of the complainant, the complaint came to be dismissed for non-prosecution. The said order has been challenged by the complainant in this appeal.

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Learned counsel for the appellant would contend that two cheques dishonoured were drawn for Rs.41,52,960/- and Rs.52,73,600/-. Despite issuance of summons, the respondent - accused has evaded service of summons. Learned counsel for the appellant - complainant did not appear on 30.12.2022, as he has to undergo medical checkup and on that day, noting the absence of the complainant and his counsel, the complaint has been dismissed for non-prosecution. He submits that as

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4 - NC: 2025:KHC:7418 CRL.A No. 441 of 2023

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cognizance was taken and case was registered and summons was ordered to be issued, the dismissal of the complaint amounts to acquittal and therefore, he has preferred an appeal under Section 378(4) of Cr.P.C. He submits that the appellant has the case on merits. The absence of the complainant and his counsel was for bona fide reason. With this, he prayed to allow the appeal and restore the criminal case.

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The learned counsel for the respondent would contend that the complaint has been dismissed for non-prosecution and therefore, the appeal is not maintainable. He further submits that the appellant has not made out the grounds for his absence on the date of the impugned order before the Trial Court. On the point urged, the learned counsel has placed reliance on the decision of the Hon'ble Allahabad High Court in the case of

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Abhishek Mishra @ Pintu vs. State of U.P. and

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Another, 2024:AHC:47637 and contended that whether

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NC: 2025:KHC:7418 CRL.A No. 441 of 2023

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Appeal lies or Revision lies has been referred to a Larger

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Bench. With this, he prayed to dismiss the appeal.

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The appellant is the complainant and the respondent is the accused in C.C.No.56/2019 pending on the file of the XVI Additional Chief Metropolitan Magistrate, Bengaluru registered for offence under Section 138 of the N.I. Act. There are two cheques involved in the case and they were drawn for Rs.41,52,960/- and Rs.52,73,600/-.

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After taking cognizance, the learned Magistrate has ordered to register a criminal case against the respondent - accused and ordered issuance of summons. The appellant - complainant has paid process fee and summons were issued from time to time. The summons issued to the respondent - accused has been returned un-served. The case was listed on 30.12.2022 for return of summons issued to the respondent - accused. On that day, noting the absence of the complainant, the Trial Court has dismissed the complaint for non-prosecution. Whereas the cheques involved in the case are drawn for

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6 - NC: 2025:KHC:7418 CRL.A No. 441 of 2023

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huge amount, the learned Magistrate ought to have granted another opportunity for taking steps for service of summons to the respondent - accused.

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The appeal has been filed under Section 378(4) of Cr.P.C. The Trial Court has taken cognizance, registered a case against the respondent - accused for offence under Section 138 of the N.I. Act. The complaint has been dismissed for non-prosecution at the stage of taking steps for service of summons to the respondent - accused. The said dismissal of complaint for non-prosecution amounts to acquittal. Therefore, the appeal filed under Section 378(4) of Cr.P.C., is maintainable.

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Considering the above aspect, the impugned order dated 30.12.2022 requires to be set aside and criminal case requires to be restored. In the result, the following:

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ORDER

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i) The appeal is allowed;

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7 - NC: 2025:KHC:7418 CRL.A No. 441 of 2023

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ii) The impugned order dated 30.12.2022 passed in C.C.No.56/2019 by the XVI Additional Chief Metropolitan Magistrate, Bengaluru is set aside and the criminal case is restored;

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iii) The parties are directed to appear before the Trial Court on 26.03.2025, without awaiting any

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Court notice.

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Sd/(SHIVASHANKAR AMARANNAVAR) JUDGE

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KG List No.: 1 Sl No.: 29

Arvind Kumar v. Mr Gautham Sajjanrajji Shankla

Case brief

What is this about?

What did the court decide?

Arvind Kumar v. Mr Gautham Sajjanrajji Shankla

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

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Procedural history

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