M/S Salora International Ltd., Vs M/S Vaibhav Systems and Networks Ltd.

M/S. VAIBHAV SYSTEMS AND NETWORKS LTD. NO.1, AIRPORT ROAD, 416, 4^TH FLOOR, CARLTON TOWERS, BANGALORE - 560 008 REP. BY ITS PROPRIETOR MR. PRABAL BANERJEE

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…RESPONDENT

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(BY SRI. BALARAM M L .,ADVOCATE)

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THIS CRL.A. IS FILED U/S.378(4) CR.P.C PRAYING TO SET ASIDE THE ORDER DATED:28.2.2015, PASSED BY THE XXV ACMM, BANGALORE, IN C.C.NO.43541/2010 - ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE P/U/S 138 OF N.I. ACT.

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THIS APPEAL, COMING ON FOR FURTHER HEARING, 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 petition is filed by the complainant praying to set

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aside the order dated 28.02.2015 passed in C.C.No.43541/2010 by the XXV Additional Chief Metropolitan Magistrate, Bengaluru, whereunder the complaint of the appellant came to be dismissed for non-prosecution and to restore C.C.No.43541/2010.

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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 respondent - accused for offence under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'N.I. Act'. for short) and it was pending in C.C.No.43541/2010 on the file of the XXV Additional Chief Metropolitan Magistrate, Bengaluru. The respondent - accused appeared in the said case. The said

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complaint of the appellant / complainant came to be dismissed for non-prosecution by order dated 28.02.2015. The said order has been challenged by the complainant in this appeal.

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Learned counsel for the appellant would contend that the complainant had filed list of documents and production of the documents was considered by the learned Magistrate and the matter came to be posted for orders on 01.12.2014. He further submits that thereafter case came to be adjourned on 13.01.2015 and 19.01.2015 for passing orders on production of documents. He further submits that on 19.01.2015, the learned Magistrate has allowed production of three documents and production of another six documents came to be rejected. He submits that the portal of the Court website indicated in daily status the matter has been posted for orders on 19.01.2015 and 12.02.2015 and therefore, the complainant could not appear before the Trial Court. He submits that Court notice said to have been issued by the

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Trial Court to the complainant has not been served. The case involves dishonour of cheque issued for making payment of amount due with regard to business transaction between the appellant and the respondent. There was a bona fide reason for absence of the complainant on the date of the impugned order. With this, he prayed to allow the appeal and restoration of the criminal case.

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Learned counsel for the respondent - accused would submit that the complainant was not diligent and he remained absent for several dates. The Trial Court after passing orders on 19.01.2015 regarding production of documents has posted the case for complainant's evidence to 12.02.2015 and on that day, the complainant and his counsel were absent and noting the same, the Court has ordered for issuance of Court notice. Inspite of Court notice, the complainant did not appeared on 28.02.2015 and noting the same, the complaint has been dismissed for non-prosecution. He submits that there are no

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NC: 2025:KHC:8037 CRL.A No. 651 of 2015

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grounds made out for absence of the complainant on the date of the impugned order and other previous dates. With this, he prayed for dismissal of the appeal.

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Having heard the learned counsels, this Court

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has perused the impugned order, certified copy of the order sheet and other materials placed on record.

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The appellant is the complainant and the respondent is the accused in C.C.No.43541/2010 pending on the file of XXV Additional Chief Metropolitan Magistrate, Bengaluru registered for offence under Section 138 of the N.I. Act. The cheque involved in the case is drawn for Rs.62,13,360/-. In the said case, the complainant has filed a list of documents. To consider production of the said documents, the matter was heard and it was posted on three dates for passing orders i.e., 01.12.2014, 13.01.2015 and 19.01.2015. On 19.01.2015, the Trial Court had passed order on production of the documents and ordered to list the matter on 12.02.2015 for evidence of the complainant. On perusal of the documents produced

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by the complainant, the case status as on 19.01.2015 is for orders, 12.02.2015 for orders and 28.02.2015 it is shown as dismissed. In the daily status of the said case shown in the website on 12.02.2015 is orders and also on 19.01.2015 for orders. It is the contention of the learned counsel for the complainant that the complainant on verifying the portal and case status thought that the case is being adjourned for passing orders, therefore, the complainant did not be present on 28.02.2015 or on 12.02.2015. On 12.02.2015, on perusal of the order sheet it is stated that the Court has issued Court notice to the complainant. The order sheet dated 28.02.2015, indicate that the said Court notice issued to the complainant has been un-served. Even noting the same, the learned Magistrate has dismissed the complaint for non-prosecution on 28.02.2015. The absence of the complainant on 12.02.2015 and 28.02.2015 was bona fide . As the cheque is drawn for Rs.62,13,360/-, the Trial Court ought to have given another opportunity to the complainant. Considering the said aspect, the appellant -

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NC: 2025:KHC:8037 CRL.A No. 651 of 2015

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complainant has made out case for setting aside the impugned order and restoration of the criminal case.

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In the result, the following:

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ORDER

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i) The appeal is allowed;

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ii) The impugned order dated 28.02.2015 passed in C.C.No.43541/2010 by XXV Additional Chief Metropolitan Magistrate, Bengaluru is set aside. C.C.No.43541/2010 is ordered to be restored; and

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iii) The parties are directed to appear before the Trial Court on 26.03.2025 without anticipating any Court notice.

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Sd/(SHIVASHANKAR AMARANNAVAR) JUDGE

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KG

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List No.: 1 Sl No.: 15

M/S Salora International Ltd., v. M/S Vaibhav Systems and Networks Ltd.

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M/S Salora International Ltd., v. M/S Vaibhav Systems and Networks Ltd.

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