Criminal Appeal No. 2101 of 2018 · The High Court
Case Details
- 1 - NC: 2025:KHC:6410 CRL.A No. 2101 of 2018 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR CRIMINAL APPEAL NO. 2101 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 (BY SMT. ANITHA R, ADVOCATE FOR SRI. T.V. VIJAY RAGHAVAN, ADVOCATE) AND: …APPELLANT Digitally signed by HEMAVATHY GANGABYRAPPA Location: HIGH COURT OF KARNATAKA 1. M/S GENERAL ENGINEERING
Legal Reasoning
INFRABUILD PVT LTD NO.665, 38TH CROSS, 15TH MAIN 4TH T BLOCK, JAYANAGAR BANGALORE-41 REPRESENTED BY ITS DIRECTOR SMT. SAVITHA G ANANTH 2. SMT. SAVITA G. ANANTH NO.48/A, "SRUSTI" C/O B.K. RAJENDRAN 11TH CROSS, 6TH MAIN ROAD 3RD PHASE, J P NAGAR BANGALORE-560 078 PRESENTLY NO.47/A, AKSHYA NANJUDESWARA LAYOUT - 2 - NC: 2025:KHC:6410 CRL.A No. 2101 of 2018 J.P.NAGAR 5TH PASHE BANGALORE-560 078 …RESPONDENTS (BY SMT. ARYA KUMAR, ADVOCATE FOR SRI. AJAY J.N, ADVOCATE FOR R2; VIDE ORDER DT.12.06.2023 - 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 NON- PROSECUTION AS PER ORDER DATED 21.07.2018 IN C.C.NO.51107/2016 ON THE FILE OF THE 24TH A.S.C.J., AND XXII A.C.M.M.,(SCCH-26) BANGALORE AND TO RESTORE THE CASE C.C.NO.51107/2016 TO THE FILE OF THE 24TH 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 1. This appeal is filed by the appellant – complainant challenging the order dated 21.07.2018 passed in C.C.No.51107/2016 by the XXIV A.S.C.J and XXII A.C.M.M Court (SCCH-26), Bengaluru and to restore C.C.No.51107/2016. 2. The appellant is the complainant and the respondent is the accused in C.C.No.51107/2016 registered against - 3 - NC: 2025:KHC:6410 CRL.A No. 2101 of 2018 the respondent - accused 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 LVII A.C.M.M., Bengaluru. The respondent - accused filed an application under Section 142-A(3) of the N.I.Act, seeking transfer to S.C.C.H-XXII / XXII A.C.M.M, Bengaluru. The said application filed by the respondent - accused came to be allowed by order dated 01.02.2018 and the criminal case was ordered to be transferred to S.C.C.H-XXII / XXII A.C.M.M, Bengaluru and the parties were directed to appear before the transferee Court on 07.04.2018. The matter came to be advanced by the learned counsel for the respondent - accused on 14.02.2018 and the memo filed by the counsel for the respondent - accused has been allowed and the order dated 01.02.2018 has been modified and case came to be transferred 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 15.06.2018 and it was adjourned to 06.07.2018 for recording the plea. On 06.07.2018, the plea was - 4 - NC: 2025:KHC:6410 CRL.A No. 2101 of 2018 recorded and the matter had been adjourned to the complainant’s evidence to 21.07.2018. On 21.07.2018, noting the absence of the appellant - complainant and his counsel, the learned Magistrate has dismissed the complaint for non prosecution. The said order of dismissal of the appellant - complainant for non prosecution has been challenged by the appellant - complainant in this appeal. 3. Heard learned counsel for the appellant - complainant and learned counsel for the respondent – accused. 4. Learned counsel for the appellant - complainant would contend that the appellant - complainant was not aware of the modification of the order dated 01.02.2018. The appellant - complainant was not aware of taking up the criminal case before the transferee Court ie., S.C.C.H- XXII and XXII A.C.M.M, Bengaluru. The criminal case was not taken up on 07.04.2018 as per the order dated 01.02.2018. The appellant - complainant was absent only - 5 - NC: 2025:KHC:6410 CRL.A No. 2101 of 2018 on one date ie., on 21.07.2018. The absence of the appellant - complainant on that day was for the bonafide reason as the appellant - complainant was not aware of the matter taken up by the transferee Court. With this, learned counsel pray to allow the appeal and restore C.C.No.51107/2016. 5. Learned counsel for the respondent – accused would contend that the appellant – complainant was aware of the transfer of the criminal case and inspite of that, he had remained absent and noting the same, the learned Magistrate has rightly dismissed the complaint for non-prosecution. With this, she prayed to dismiss the appeal. 6. On the application filed by counsel for the respondent - accused, the criminal case which was pending on the file of LVII A.C.M.M, Bengaluru was ordered to be transferred to S.C.CH-XXII / XXII A.C.M.M, Bengaluru and the parties were directed to appear before the transferee Court on 07.04.2018 without anticipating any notice from the Court. - 6 - NC: 2025:KHC:6410 CRL.A No. 2101 of 2018 On perusal of the order sheet, it would indicate that on 14.02.2018 and the memo filed by learned counsel for the respondent - accused had been allowed and the order dated 01.02.2018 was modified and the case was ordered to be transferred to XXIV A.S.C.J and XXII A.C.M.M (SCCH-26), Bengaluru. The said criminal case was not called before the transferee Court on 07.04.2018 as per the order dated 01.02.2018. The said criminal case was taken up before the transferee Court on 15.06.2018 and it was adjourned to 06.07.2018 for recording the plea. On 06.07.2018, plea was recorded and the case came to be adjourned to 21.07.2018 for the complainant’s evidence. On 21.07.2018, noting the absence of the appellant - complainant and his counsel, the case came to be dismissed for non prosecution. As the criminal case was not taken up before the transferee Court on 07.04.2018 as per the order dated 01.02.2018, the appellant - complainant was not aware of the proceedings before the transferee Court and therefore, the absence of the appellant - complainant before the transferee Court is for - 7 - NC: 2025:KHC:6410 CRL.A No. 2101 of 2018 a bonafide reason. Therefore, the order dated 21.07.2018 dismissing the complaint for non-prosecution requires to be set-aside and the criminal case requires to be restored.
Decision
In the result, the following; ORDER The appeal is allowed. The impugned order dated 21.07.2018 passed in C.C.No.51107/2016 by the S.C.C.H- XXII / XXII A.C.M.M (SCCH-26), Bengaluru is set-aside. C.C.No.51107/2016 is ordered to be 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.: 20.1