Karnataka High Court
Sri Sankalchand S/O Chunilalji Kawad vs Smt. Veena N. W/O (Not Known To ... on 12 August, 2022
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CRL.A No. 100350 of 2022
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 12TH DAY OF AUGUST, 2022
BEFORE
THE HON'BLE MR JUSTICE J.M.KHAZI
CRIMINAL APPEAL NO. 100350 OF 2022 (A-)
BETWEEN:
1. SRI SANKALCHAND S/O CHUNILALJI KAWAD,
AGE. 71 YEARS,
OCCP. PROPRIETOR LOKSEVA DRESSES
AND LOKASEVA FABS,
R/O. JAIN MARKET BALLARI,
THOUGH P. A. HOLDER AKSHAY KUMAR H. M.
S/O. LATE YERRISWAMY,
AGE. 24 YEARS, OCCP. PRIVATE SERVICE,
R/O. BALLARI-583101.
...APPELLANT
(BY SRI. NEELENDRA.D.GUNDE, ADVOCATE)
AND:
1. SMT. VEENA N. W/O (NOT KNOWN TO PETITIONER)
AGE. MAJOR,
OCCP. PROP OF MS GOLDRUSH CLOTHINGS,
NO. 41, KARIHOBANAHALLI VILLAGE,
Digitally signed by
CHANDRASHEKAR
LAXMAN
SRI KRISHNA ESTATE, T G PALYA MAIN ROAD,
KATTIMANI
2ND STAGE, PEENYA BANGALORE-560058.
CHANDRASHEKAR
LAXMAN Location: HIGH
KATTIMANI COURT OF
KARNATAKA,
DHARWAD
Date: 2022.08.12
14:36:58 +0530
...RESPONDENT
(NOTICE DISPENSED WITH)
THIS CRIMINAL APPEAL IS FILED U/S 378(4) OF CR.P.C.,
SEEKING TO CALL FOR THE RECORDS AND ALLOW THIS
CRIMINAL APPEAL BY SETTING ASIDE THE JUDGMENT AND
ORDER OF ACQUITTAL DATED 21.06.2022 PASSED IN C.C.
NO.285/2020 PASSED BY THE III-ADDITIONAL CIVIL JUDGE AND
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CRL.A No. 100350 of 2022
JMFC, BALLARI, REGISTERED FOR THE OFFENCES PUNISHABLE
U/S 138 OF N.I. ACT, AND CONVICT THE RESPONDENT.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING.
JUDGMENT
For the sake of convenience, parties are referred to by their rank before the Trial Court.
2. Appellant, who is complainant in CC No.847/2019 on the file of III Additional Civil Judge and JMFC Court, Ballari, filed a private complaint under Section 200 of the Code of Criminal Procedure, (for short "Cr.P.C") alleging that he is running cloth business under the name and style "Lok Seva Dresses" and "Lok Seva Fabs". Accused is running garment business under the name and style "Goldrush Clothings". In respect of credit purchase made by her, accused issued two cheques for a sum of Rs.5,60,014/- and Rs.5,56,000/- and on presentation, the same came to be returned with endorsement "payment stopped by drawer". By order dated 20.06.2019, the trial Court took cognizance and issued summons. However, in spite of taking steps several times, the accused managed to dodge service of summons. On 21.06.2022, the trial Court -3- CRL.A No. 100350 of 2022 dismissed the complaint for non prosecution. The trial Court ought to have provided reasonable opportunity to the complainant to secure the presence of accused, especially when she is intentionally evading service of summons and prays to allow the appeal.
3. Heard the arguments and perused the record.
4. Initially, the case was allotted I-Additional JMFC Court, Ballari and numbered as CC No.847/2019. Vide administrative order dated 04.07.2020 passed by the CJM, Ballari, it was made over to the Court of III Additional Civil Judge and JMFC., Ballari, and renumbered as CC No. 285/2020.
5. From the order sheet of both Courts it is evident that the trial Court had ordered issue of summons to accused on several dates. However, the order sheet does not state whether in fact summons was issued and if so what happened to the summons so issued, i.e., whether it is executed or returned un-executed and reasons. The Bench clerk who has maintained the order sheet has not noted whether steps have been taken as ordered by the Court, if so whether in fact summons was issued and whether it is served, if not, the -4- CRL.A No. 100350 of 2022 reason for non service. If the order sheet is properly maintained, the Court will be in a position to know at whose fault the summons could not be served.
6. Even though the accused has not put in her appearance, vide order dated 30.07.2021, 27.09.2021 and 23.02.2022 the trial Court has referred the matter to the Lok- Adalat and returned the file as not settled. Ultimately, the complaint came to be dismissed on 21.06.2022 under Section 256 of Cr.P.C on the ground of absence of complainant. Having regard to the fact that the accused has evaded the service of summons and taking into consideration the fact that complainant and accused were having business transaction and also the amount involved in the transaction, I am of the considered opinion that complainant requires reasonable opportunity to prosecute the complaint, secure the presence of the accused and proceed with the matter and accordingly, I proceed to pass the following:
ORDER Appeal is allowed.-5-
CRL.A No. 100350 of 2022 The impugned order dated 21.06.2022 passed by the III Additional Civil Judge and JMFC., Ballari is set aside.
The complaint is restored to the original file, with a direction to the complainant to prosecute the matter diligently to secure the presence of the accused and proceed with the matter without seeking unnecessary adjournments.
The complainant is directed to appear before the trial Court on 06.09.2022 and take steps for issuance of summons to the accused.
Sd/-
JUDGE PJ