- 1 -
CRL.A No. 912 of 2023
NC: 2024:KHC:4116
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
ST
DATED THIS THE 31 DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MS JUSTICE J.M.KHAZI
CRIMINAL APPEAL NO.912 OF 2023
BETWEEN:
SRI. NARENDRA BABU. N
S/O NARASIMHA MURTHY
AGED ABOUT 43 YEARS,
R/AT NO.201,MAHADEVI
TH
RESIDENCY 6 CROSS,
LB SHASTRINAGAR, HAL POST,
BENGALURU - 560 017
…APPELLANT
(BY SRI. ABHISHEK N V, ADVOCATE)
AND:
SRI. RAJESH
S/O LATE VENKATESH,
AGED ABOUT 33 YEARS,
RD
R/AT NO.235, 3 CROSS,
NEAR HANUMANTHA TEMPLE,
BILESHIVALE COLONY, HANUMANTHANAGAR
Digitally
SHIVARAMAKARANTHA NAGAR POST,
signed by
REKHA R
BENGALURU - 560 077
Location: High …RESPONDENT
Court of
Karnataka
THIS CRL.A IS FILED UNDER SECTION 378(4) OF CR.PC
PRAYING TO a) SET ASIDE THE ORDER DATED 21.03.2023,
PASSED BY THE HON'BLE XVI ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, BENGALURU, IN
C.C.NO.26915/2022, DISMISSING THE CASE FOR NON-
PROSECUTION AND ACQUITTING THE ACCUSED AND
CONSEQUENTLY RESTORE THE CASE IN C.C.NO.26915/2022
FOR FURTHER PROCEEDINGS, IN THE INTEREST OF JUSTICE
AND EQUITY; b) PASS ANY SUCH OTHER ORDER OR
DIRECTIONS THAT THIS HON'BLE COURT DEEMS FIT, IN THE
INTEREST OF JUSTICE AND EQUITY.
- 2 -
CRL.A No. 912 of 2023
NC: 2024:KHC:4116
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is by the complainant, challenging the
dismissal of the complaint filed by him against
respondent/accused for the offence punishable under
Section 138 of N.I.Act, contending that
respondent/accused borrowed hand loan of Rs.4,80,000/-
and towards repayment of the same issued cheque . When
it was presented for encashment, it was dishonoured on
the ground "Drawer's signature differs". After issuing legal
notice, when respondent/accused failed to pay the amount
due, complaint was filed. Without providing reasonable
opportunity, the trial Court has dismissed the complaint on
the ground that complainant is not diligent in prosecuting
the complaint.
2. Heard arguments and perused the record.
3. As evident from the complaint averments and
the material placed on record, appellant filed the
complaint against respondent/accused for the offence
- 3 -
CRL.A No. 912 of 2023
NC: 2024:KHC:4116
punishable under Section 138 of N.I. Act. According to
him, respondent/accused borrowed a sum of
Rs.4,80,000/- and issued the subject cheque. However,
when presented for realization, it was returned unpaid on
the ground that the signature of the drawer found on the
cheque differs from his specimen signature.
4. The order sheet indicate that on 29.04.2022,
complaint was filed. On the same day, the learned
Magistrate has taken cognizance and posted the case to
22.06.2022, for recording sworn statement. From there it
was posted to 02.08.2022. On that date, complainant has
given his sworn statement and documents are marked.
The trial Court has ordered that there is prima facie
material to proceed against the respondent/accused and
issued summons returnable by 12.10.2022. Though duly
served with summons, respondent/accused failed to
appear. On that day, the trial Court has referred the
matter to Lok Adalath and given the date as 12.11.2022.
On 12.11.2022, the conciliation is held and when the
matter is not settled, it was sent back to the Court.
- 4 -
CRL.A No. 912 of 2023
NC: 2024:KHC:4116
5. On 13.01.2023, once again the trial Court has
issued summons to the respondent/accused, returnable by
21.02.2023. On that day, once again summons was re-
issued returnable by 21.03.2023. However, in the order
sheet, it is not noted as to whether the summons is served
on the accused or not. After observing that complainant is
absent and there is no representation for the complainant,
the trial Court has dismissed the complaint for non-
prosecution.
6. If on 21.03.2023, the summons was returned
unserved, the trial Court ought to have given an
opportunity to take further steps against the
respondent/accused. In fact on 12.10.2022, when the
respondent/accused was served and the case was posted
for settlement before the Lok Adalath, there was no need
for the trial Court once again to issue summons. It ought
to have taken coercive steps against the
respondent/accused. In the above facts and
circumstances, this Court is of the considered opinion that
- 5 -
CRL.A No. 912 of 2023
NC: 2024:KHC:4116
the learned Magistrate has erred in dismissing the
complaint and as such the impugned order is liable to be
set aside and accordingly, I proceed to pass the following:
ORDER
(i) Appeal is allowed.
(ii) The impugned judgment and order dated
21.03.2023 passed in C.C.No.26915/2022 on
the file of XVI ACMM, Bengaluru is set aside.
(ii) The complainant is directed to appear before
the trial Court on 15.02.2024 without waiting
for further notice from the trial Court.
(iii) The complainant shall take steps against the
respondent/accused and the trial Court shall
proceed in accordance with law.
Sd/-
JUDGE
RR
List No.: 1 Sl No.: 41