Karnataka High Court
Sri K M Uday vs Smt Surabhi Raghu on 21 June, 2022
Author: M. Nagaprasanna
Bench: M. Nagaprasanna
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF JUNE, 2022
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
WRIT PETITION No.11910 OF 2022 (GM-RES)
BETWEEN:
SRI K.M.UDAY
S/O MADAIAH
AGED ABOUT 47 YEARS
R/AT NO.4/204
VISHAL PALACE, 1ST CROSS,
MALLESHWARAM,
BENGALURU - 560 003.
... PETITIONER
(BY SRI K.SHASHIKIRAN SHETTY, SR. ADVOCATE FOR
SRI SANDEEP LAHIRI, ADVOCATE)
AND:
SMT.SURABHI RAGHU
W/O RAGHU
AGED MAJOR,
NO.2, HOYSALA DREAMS
OPP. M.S.RAMAIAH HOSPITAL
SEENAPPA LAYOUT, 40 FEET ROAD
NEW BEL ROAD
BENGALURU - 560 094.
... RESPONDENT
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA READ WITH SECTION 482 OF
2
CR.P.C., PRAYING TO ALLOW THIS W.P. BY SET ASIDE THE ORDER
DTD.29.3.2019 PASSED BY THE LEARNED XIII ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE BANGALORE AND RESTORE THE
COMPLAINT IN PCR NO.364/2017 ON THE FILE OF XIII ADDITIONAL
CHIEF METROPOLITAN MAGISTRATE BANGALORE FOR OFFENCE
UNDER SECTION 138 OF NEGOTIABLE INSTRUMENTS ACT 1881
ANNXURE-A AND B.
THIS WRIT PETITION COMING ON FOR ORDERS THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
The petitioner is before this Court calling in question order dated 29-03-2019 passed in PCR No.364 of 2017, whereby the learned XIII Additional Chief Metropolitan Magistrate, Bangalore, has dismissed the case for its non-prosecution.
2. Heard the learned senior counsel Sri K.Shashikiran Shetty, appearing for the petitioner.
3. Sans unnecessary details, facts in brief are as follows:-
According to the petitioner, the respondent/accused had borrowed a sum of Rs.25,00,000/- from the petitioner/complainant and had issued a cheque towards the borrowed sum of Rs.25/- lakhs, which was dated 26-10-2016.
The cheque when presented for encashment had been 3 dishonoured on 30-11-2016, for want of sufficient funds. A legal notice was caused upon the accused on 14-12-2016 and having found no reply, a complaint is registered invoking Section 200 of the Cr.P.C. on 06-01-2017, on which day itself, the learned Magistrate took cognizance and directed the matter to be posted on 17-02-2017 for sworn statement. The matter was adjourned on 16 occasions for recording of sworn statement. The learned Magistrate by his order dated 29-03-2019, noticing the fact that the complainant was not interested to pursue the matter as he has never offered himself for recording of sworn statement on 16 occasions, dismissed the case for non-
prosecution. It is this order that is called in question in the case at hand.
4. The learned senior counsel representing the petitioner would submit that there has been a mistake on the part of the petitioner who remained absent before the learned Magistrate, who has ultimately lost Rs.25/-lakhs that he has given to the accused, who in turn has given a cheque. All the proceedings 4 prior to registration of the crime in PCR No.364 of 2017, were in fact carried out. It is only when the petitioner did not appear for recording of sworn statement, the Court had passed the order. Regrets have been expressed in the pleadings to contend human error and pleaded that it is a question of Rs.25/- lakhs, which the petitioner lost by lending money to the accused and the accused has got away with the folly of the petitioner. He seeks one opportunity to be granted.
5. I have given my anxious consideration to the submissions of the learned senior counsel for the petitioner and perused the material on record.
6. The afore-narrated facts are not in dispute and therefore, are not reiterated. The order that leads to this Court reads as follows:
"This complaint is filed on 06-01-2017. The case was posted for sworn statement on 17-02-2017. The complainant and his advocate are absent. There is no representation of this case. For sworn statement 16 adjournments are granted. On record there are only zerox copies of cheque and related documents. It 5 appears that the complainant is not interested in prosecuting this case. Therefore, the complaint is dismissed for non-prosecution."
It is not in dispute that there were 16 adjournments for recording of sworn statement of the petitioner. But, the petitioner being the complainant/victim had allegedly lost Rs.25/- lakhs that is given to the accused and every proceeding had been taken up in accordance with law. The termination of the case would undoubtedly put grave hardship to the petitioner.
7. The respondent who is though arrayed as a party in the case at hand had not been notified as the case was at the stage of recording of sworn statement and no summons yet been issued. The dismissal of the case for its non-prosecution would not amount to acquittal under Section 256 of the Cr.P.C. Therefore, I deem it appropriate to grant one opportunity to the petitioner to appear before the learned Magistrate by offering himself for recording of sworn statement and diligently continue to prosecute the case. In the event the learned Magistrate would 6 find indolence on the part of the petitioner in the proceedings or dodge recording of sworn statement on the day fixed, he is at liberty to pass appropriate orders as deemed fit in accordance with law.
8. For the aforesaid reasons, I pass the following:
ORDER i. The Writ Petition is allowed.
ii. The order dated 29-03-2019 passed by the XIII Additional Chief Metropolitan Magistrate, Bangalore in P.C.R.No.364 of 2017 is quashed.
iii. The complaint is restored to file before the learned Magistrate and the learned Magistrate shall fix a date for recording of sworn statement of the petitioner and in the event the petitioner fails to appear on the said date, the Court would be at liberty to pass such orders as it deem fit in the circumstances and in accordance with law.
iv. Costs of Rs.5,000/- is imposed on the petitioner to be deposited with the Karnataka 7 Legal Services Authority before recording of the sworn statement.
Sd/-
JUDGE nvj CT:MJ