Shri Sharanabasaveshwar Finance Corporation v. Shivangouda Sb Fakkirappa Shivangoudar

ORDER Heard the counsel for the petitioner. The petitioner is a partnership firm engaged in finance business. The petitioner had filed a private complaint against the respondent herein for an offence punishable under Section 138 of the Negotiable Instruments Act, 1988 (hereinafter referred to as the ‘Act’ for brevity). It is not in dispute that the matter was set down for recording of the sworn statement on behalf of the complainant. Inspite of adjoumments, there was no representation on behalf of the complainant and the complainant remained absent before the court of the Magistrate. Accordingly, the court held that sufficient time was granted for compliance. Since the complainant and his counsel had remained absent consistently, the complaint was dismissed for non-prosecution. Against such 3 dismissal, a Criminal Revision Petition was filed before the Court of the Sessions Judge in the year 2009 and the same having been decided on merits, it was held that the revision petition under Section 397 of the Code of Criminal Procedure was not maintainable and that the petitioner ought to file a petition before this court. Hence, the present petition is filed. It is seen that the offence alleged is in respect of a cheque dated 12.2.2004 for a sum of R.s.9,420/-. Since the petitioner has not chosen to file a civil suit for recovery of the amount the present complaint being revived at this remote point of time, on the admitted negligence on the part of the complainant in the first instance, does not merit consideration. Accordingly the petition is rejected.

3. At this stage, the learned counsel for the petitioner seeks to place reliance on the following judgments: a) S.Anand vs. Vasumathi Chandrasekar, 2008 CrLLJ 1943, 6 4 b) Associated Cement Company Limited vs. Keshvanand. AIR 1998 SC 596. c) Bobv vs. Vineet Kumar. 2009 Crl.LJ 3911 In S.Anand, supra, the facts were that the appellant therein was being prosecuted for the alleged commission of an offence under Section 138 of the Act. In the said proceedings, witnesses on behalf of the prosecution had been examined. The complainant had closed her case. A date was fixed for the examination of the defence witness. However, the appellant application cross-examination of complainant, which was rejected. A revision application having been filed, in the said revision petition application, no order of stay was passed. Whereas the appellant had continuously remained present before the trial judge, complainant remained absent. On or about 18.4.2006, appellant filed an application for his acquittal on the ground of absence of the complainant. By an order dated 24.4.2006, the Magistrate acquitted the accused under section 256(1) of the Code of Criminal Procedure. An appeal was preferred before the High Court and the same was allowed relying on an earlier judgment of the apex court. From the facts narrated hereinabove, it is not clear as to how the said judgment would apply to the facts of the present case. Hence this would not advance the case of the petitioner. Insofar as the case in Associated Cement Company Limtied, supra, is concerned, the facts were that the appellant- company had been prosecuting the respondent for an offence punishable under Section 138 of the Negotiable Instruments Act, 1988. The Magistrate had acquitted the respondent on

24.8.1996 on the ground that the complainant was absent. The appellant filed an appeal challenging the said order of acquittal before the High Court with leave, but that appeal was dismissed. An appeal was filed before the apex court against the said judgment of the High Court. 6 The question was, whether the contention that Section 247 of the old Code corresponding to Section 256 of the new Code was not applicable to a case where the complainant is a company or any other juristic person. Since the view taken by the apex court was the Magistrate should not have acquitted the respondent under Section 247 of the old Code on the facts of the case. The appeal stood allowed. The fact situation in the said decided case is not similar to the fact situation in the present case and hence cannot be applied. In Boby, supra, the facts are as follows: The complaint was dismissed by the Judicial Magistrate, which had an effect of acquittal. Against the dismissal, a revision petition was filed before the Court of the Sessions, which was withdrawn on realising that the matter was not maintainable before the Court of Sessions. The record indicated that preliminary evidence by affidavits was before the trial Court and on considering the complaint, the trial 7 court found reasonable grounds against the respondent as the accused and as such, he was ordered to be summoned. The summons were not received back on that day, as indicated in the record. But, this was not recorded in the order passed by the Judicial Magistrate. However, he ordered summons to the accused on filing of the process fee within three days. Thereafter, the matter stood dismissed for default. it is that which was under challenge in that case. Hence, it is not a case which would apply to the present case on hand since the complainant had been examined before the Magistrate and cognizance had been taken and process indeed was issued thereafter under a mistaken impression that steps were not taken for issuance of process. The complaint having been dismissed would not be a case that would advance the case of the petitioner. Sd! JUDGE