Research › Search › Judgment

Karnataka High Court · body

2020 DIGILAW 1962 (KAR)

H. K. Nagaraju v. B. C. Anusuya

2020-10-01

K.S.MUDAGAL

body2020
JUDGMENT K.S.Mudagal, J. - Whether the impugned order dated 28.11.2016 in Crl.A.No.258/2015 passed by the I Additional Sessions Judge, Mysuru dismissing the appeal of the petitioners for not paying process fee suffers incorrectness, illegality, impropriety? is the question involved in this case. 2. Respondent filed complaint in C.C.No.1858/2012 before the V Additional I Civil Judge and J.M.F.C., Mysuru against the petitioners under Section 200 of Cr.P.C., to prosecute them for the offence punishable under Section 138 of the Negotiable Instruments Act. 3. For the purpose of convenience, the parties will be referred to henceforth with their ranks before the Trial Court. 4. In the complaint, the complainant alleged that the accused issued a Cheque bearing No.275493 dated 20.10.2011 for Rs.2,00,000/- drawn on State Bank of Mysore, Ittigegudu Branch, Mysuru in her favour towards discharge of her legal liability and when presented, the said Cheque was dishonoured for want of sufficient funds. She further alleged that even her statutory notice calling upon the accused to pay the Cheque amount was not complied and the accused have cheated her by issuing the Cheque. 5. The Trial Court took cognizance and summoned the accused. They did not plead guilty. Therefore, the trial was conducted. The accused admitted that the Cheque - Ex.P1 belongs to their account. They also admitted their signatures on the Cheque, but contended that they had issued the blank Cheque and the complainant had misused that Cheque and there was no legally recoverable debt. 6. The trial Court, by the judgment and order dated 30.11.2015 rejected the defence of the accused and convicted them for the offence punishable under Section 138 of the Negotiable Instruments Act and sentenced them to pay fine of Rs.2,75,000/- and in default to undergo simple imprisonment for six months. Out of the fine amount, Rs.2,70,000/- was awarded to the complainant as compensation. 7. The accused challenged the said order before the I Additional Sessions Judge, Mysuru in Crl.A.No.258/2015. On 24.06.2016 the notice issued to the complainant/respondent was returned with an endorsement addressee vacated . Thereafter, the matter was adjourned for six times from time to time upto 28.11.2016 for taking fresh steps to the complainant/respondent. 8. The certified copy of the order sheet in Crl.A.No.258/2015 produced before this Court shows that on 28.11.2016 the counsel for the accused/appellants did not appear, therefore, by the impugned order the First Appellate Court dismissed the appeal for non-prosecution. 8. The certified copy of the order sheet in Crl.A.No.258/2015 produced before this Court shows that on 28.11.2016 the counsel for the accused/appellants did not appear, therefore, by the impugned order the First Appellate Court dismissed the appeal for non-prosecution. 9. The accused challenges the said order in this revision petition on the ground that they had taken steps to the address furnished by the complainant herself in the trial Court proceedings still, notice was not served. 10. Sri P.Nataraju, learned Counsel for the accused submits that the omission on the part of the accused was not deliberate, the First Appellate Court should have given opportunity to the accused to collect the correct address of the complainant and take steps. He further submits that they were thrown out of the Court without adjudication in the appeal and subject to any condition an opportunity may be given and the matter may be remanded. 11. Per contra, Sri. Syed Abdul Saboor learned counsel for the respondent submits that the accused have deliberately delayed the matter and the complainant was residing in the same address. He further submits that the accused are not entitled for any indulgence. 12. The First Appellate Court records show that the accused had furnished the very same address of the complainant in the appeal as furnished by her in the trial Court. The notice sent to her by RPAD was returned with the endorsement addressee left . In this proceedings, the notice is served on the respondent on the very same address. Learned counsel for the respondent submits that presently also complainant is residing in the same address. 13. The appeal was dismissed on the ground that the appellant s counsel did not appear to take steps to issue process. By virtue of the interim order of this Court, the accused have already deposited 50% of the Cheque amount. They had suffered an order of conviction and sentence. 14. The First Appellate Court had admitted the appeal for hearing. In such cases, Section 385 of Cr.P.C., requires that the appeal shall be disposed of by notifying the date of hearing. Since in this case the appellant was the convicted accused, if his advocate failed to appear, the trial Court should have secured the presence of the appellant by following due process of law and proceeded with the appeal. In such cases, Section 385 of Cr.P.C., requires that the appeal shall be disposed of by notifying the date of hearing. Since in this case the appellant was the convicted accused, if his advocate failed to appear, the trial Court should have secured the presence of the appellant by following due process of law and proceeded with the appeal. Therefore, the impugned order of dismissal of the appeal is contrary to Section 385 of Cr.P.C., and unsustainable. 15. Learned counsel for the complainant submits that the complainant is fighting a litigation since 2012. Therefore, if at all the matter is to be remanded, the complainant may be permitted to withdraw the amount deposited by the accused and time may be fixed for disposal of the appeal. Considering the aforesaid submissions and above discussions, the petition is allowed. 16. The impugned order dated 28.11.2016 passed by the I Additional Sessions Judge, Mysuru in Crl.A.No.258/2015 dismissing the appeal of the accused is hereby set aside. The matter is remanded to the First Appellate Court for fresh consideration. 17. To avoid further delay in the matter, the parties are hereby directed to appear before the First Appellate Court on 09.11.2020 virtually/physically without fail. 18. The First Appellate Court shall hear the parties and dispose of the appeal within three months from the date of the appearance of the parties. 19. The complainant/respondent is permitted to withdraw the amount deposited by the accused subject to furnishing appropriate security and surety to the satisfaction of the Trial Court. Sessions Court/Appellate Court Records and Trial Court Records shall be returned to the First Appellate Court, forthwith.