Karnataka High Court
M/S Shree Balaji Timber Traders vs M/S Dream Nest Construction Pvt Ltd on 2 November, 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF NOVEMBER, 2020
BEFORE
THE HON'BLE MR. JUSTICE N.K.SUDHINDRARAO
CRIMINAL APPEAL No.1205/2011
BETWEEN:
M/s.SHREE BALAJI TIMBER TRADERS
HAVING OFFICE AT
# 312/A, RING ROAD
SRI RAGHAVENDRA NAGAR,
H.R.B.R. LAYOUT,
KALYANANAGAR POST,
BENGALURU-560 043. ..APPELLANT
(BY SMT.PARVATHY P.S., FOR SRI.B.L.SANJEEV,
ADVOCATE)
AND:
M/s.DREAM NEST CONSTRUCTION PVT. LTD.,
(A UNIT OF GAURAV GROUP)
A COMPANY INCORPORATED UNDER
THE COMPANIES ACT, 1956,
HAVING ITS OFFICE AT #867/A,
II STAGE, WEST OF CHORD ROAD,
BENGALURU-560 084
REPRESENTED BY ITS CHAIRMAN/
MANAGING DIRECTOR
SRI.GAURAV ..RESPONDENT
(BY SRI.RAHAMATHULLA SHARIFF, ADVOCATE -ABSENT)
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THIS CRIMINAL APPEAL IS FILED UNDER SECTION
378(4) OF CR.P.C. BY THE ADVOCATE FOR THE
APPELLANT PRAYING TO SET ASIDE THE ORDER DATED
07.12.2009 PASSED BY THE XIV ADDITIONAL CMM.,
BANGALORE IN C.C.NO.30543/2007 -ACQUITTING THE
RESPONDENT/ACCUSED FOR THE OFFENCE PUNISHABLE
UNDER SECTION 138 OF NEGOTIABLE INSTRUMENTS ACT.
THIS CRIMINAL APPEAL COMING ON FOR FINAL
HEARING THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
This appeal is directed against the order passed by the learned XIV ACMM, Mayohall, Bengaluru, in C.C.No.30543/2007 dated 07.12.2009 wherein complaint came to be dismissed for default.
2. Criminal appeal is filed under Section 378(4) of Cr.P.C., seeking restoration of complaint in PCR No.7190/2007.
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3. In order to avoid confusion and overlapping parties are addressed in accordance with their rankings as held by them before trial court.
4. Learned counsel for appellant present. Learned counsel for respondent absent.
5. The substance of the matter is that the complainant filed a criminal case for the offence punishable under Section 138 of the Negotiable Instruments Act before the learned XIV ACMM, Bengaluru in PCR No.7190/2007 and the same was numbered subsequently as C.C.No.30543/2007 against M/s.Dream Nest Construction (P) Limited. But, Complainant Firm is a registered Partnership Firm represented by its Managing Partner carrying on the business as wholesale Timber Merchants dealing with imported wood, hardwood, imported gum sal wood, 4 Matthe, Honne and teak wood and allied materials, having its place of business at the address mentioned in the cause title. Respondent has represented that it is a developer, incorporated as a private limited company under the Companies Act, 1956 carrying on business in the field of reality development, under the name and style of M/s.Dream Nest Construction Private Limited. A unit of Gaurav Group, having its registered office at the address mentioned in the cause title.
6. It is submitted that the respondent had represented that the respondent company is a developer of repute in the market and that it would be prompt in payments for the goods received. Based on the representations and warranty, appellant supplied materials regularly to the respondent on credit basis against orders placed in writing as well as orally. As 5 and when the aforesaid supplies were made, respondent has received, accepted and utilized the same fully for its various projects without any complaints. It is submitted that respondent had issued four cheques bearing Nos.316776, 316777, 316778, 316779 for a sum of Rs.1,00,000/- each drawn on Punjab National Bank, Mahalakshmi Layout, Bengaluru-560 086, towards payment of price of timber/goods supplied. However on presentation of the said cheques they came to be dishonoured due to "Insufficient funds". Complainant got issued notice dated 20.06.2007 calling upon the accused to discharge the outstanding legally due and payable to the complainant. Though legal notice was served accused failed to comply with the demand.
7. Complainant presented the case under Section 200 Cr.P.C for the offence punishable under Section 6 138 of Negotiable Instruments Act before the learned XIV ACMM, Mayohall, Bengaluru. In the said case accused did not appear continuously. However as the complainant did not take proper steps matter came to be dismissed for non-prosecution on 07.12.2009, against this the complainant preferred a criminal petition before this court.
8. However this court passed order in Criminal Petition No.1073/2011 as under:
"The private complaint filed by the
petitioner herein before the learned
Magistrate alleging offence punishable
under Section 138 of N.I. Act came to be dismissed for default, on the ground that the petitioner had failed to take necessary steps for service of summons on the respondent-accused.
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2. The source of power for dismissal of the complaint for default in Section 256 of the Cr.P.C. The consequence of such dismissal under Section 256 of Cr.P.C is acquittal of the accused. Against the order of acquittal, the complainant has a right of appeal under Section 378(4) of Cr.P.C. When there is a statutory right of appeal, this Court declines to exercise inherent jurisdiction under Section 482 of Cr.P.C.
3. Therefore, this petition is rejected. The petitioner is at liberty to take such steps as is open to him under law."
9. Thereafter complainant filed appeal before the Sessions Court in Criminal appeal No.25170/2011 and it is submitted District Judge opined that against an acquittal order, appeal lies to High Court and not to District Court. Complainant had to withdraw the appeal before the District Court on 14.10.2011 as under:
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"Advocate filed memo to withdraw the appeal. Hence, the appeal is dismissed as withdrawn."
10. It was thereafter complainant filed the present appeal which is numbered as Criminal appeal No.1205/2011.
11. Learned counsel Smt.Parvathy for appellant submits that she has information to the effect that accused moved for quashing of the proceedings before the trial court when the matter was pending. However that came to be dismissed on 10.12.2010. Thus in the first phase accused did not appear before the trial court. However, due to non taking of steps complaint came to be dismissed for non-prosecution. Thereafter complainant came before this court in Criminal petition which came to be rejected on the 9 ground appeal has to be preferred which order is already extracted.
12. Thereafter complainant was driven to District Court where the District Court has opined appeal does not lie against the order of acquittal to the District Court. Again it has come before this Court.
13. No doubt delay of 660 days was condoned on 25.07.2012 by this court.
14. Learned counsel Smt.Parvathy for appellant submits that on complete perusal of the proceedings, it reflects that there is no default of the appellant and that no opportunity was given to appellant to prosecute the appeal and learned trial Judge did not notice the default or absence committed by the accused. In the whole circumstances of the case the 10 opportunity has to be assessed before deciding whether a party had innumerable opportunities and failed to avail. No doubt after series of default if opportunity is denied at the end parties resort to principles of natural justice. But in this case earlier accused did not appear and complaint came to be dismissed for non-prosecution by the trial Judge.
15. When complainant comes before this court in criminal petition it directed appellant that it has to go before proper forum thereby holding that this court is not proper forum. Further it has to go before Sessions court which opined that it has no jurisdiction. Appellant was made to come before the court that has no jurisdiction and days are consumed, brakes had to be applied at any one of the stage. In this case I find learned trial Judge erred in dismissing the complaint and further orders made by this court or by District 11 court does not reflect default or negligence of the appellant, I find appeal deserves to be allowed.
Hence, I proceed to pass the following:
ORDER Order dated 07.12.2009 passed in C.C.No.30543/2007 by the XIV ACMM, Mayohall, Bengaluru, is set aside and matter is remanded to trial court with a direction to the trial court to dispose of the matter within six months from the date of first appearance.
Parties shall appear before the trial court on 14.12.2020.
Sd/-
JUDGE SBN