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2020 DIGILAW 2072 (KAR)

Shanthamma v. B. S. Gururaj C/o Savita Jayanna

2020-10-16

K.SOMASHEKAR

body2020
JUDGMENT K.Somashekar, J. - Sri. Venkatesh R Bhagat, learned counsel for the petitioners appears through video conferencing. But in this petition, notice against the accused/respondent in C.C.No.5288/2015 has been served but unrepresented. 2. Though the case is posted for admission, with the consent of the learned counsel for the petitioners, the matter is taken up for final disposal. 3. This petition is filed for quashing the order dated 13.01.2017 passed by the XVI ACMM, Bengaluru in C.C.No.5288/2015 arose in PCR No.2064/2013 and to restore the complaint. 4. It is stated in the complaint filed by the complainant namely A.Krishnappa in PCR No.2064/2013 against the respondent/accused for the offence punishable under Section 138 of Negotiable Instrument Act relating to bouncing of cheque at Rs.4,00,000/-. During the pendency of the said criminal proceedings, the complainant-A.Krishnappa died leaving behind the petitioners No. 1 to 4 who are his wife and children respectively. Hence, the petitioners have preferred an application under Section 256(2) of Cr.P.C. seeking permission from the Court to come on record by producing the death certificate as well as family tree along with vakalath. However, the trial Court has insisted for the presence of the petitioners before the Court and consequently, the case was dismissed on 13.01.2017 for default. Whereas in this petition the copy of the impugned order dated 13.01.2017 is produced as annexure-A, a copy of the complaint along with enclosures are produced as annexure-B, the death certificate of the defacto complainant is produced as annexure-c and a copy of the application is produced as annexure-D. 5. The learned counsel for the petitioners has taken me through the erroneous order passed by the Court of XVII Addl. Chief Metropolitan Magistrate, Bangalore which reads as under: The complainant s counsel has reported the death of the complainant on 25.04.2016. But till date, no steps have been taken by the legal representatives of the complainant to come on record. It appears none is interested to proceed with the case. Accused is present but neither the counsel for the complainant nor any LRs of the complainant are present. Hence, the complaint is dismissed as abetted and for none prosecution . 6. But till date, no steps have been taken by the legal representatives of the complainant to come on record. It appears none is interested to proceed with the case. Accused is present but neither the counsel for the complainant nor any LRs of the complainant are present. Hence, the complaint is dismissed as abetted and for none prosecution . 6. The learned counsel for the petitioners during the course of his argument has contended that the trial Court has erroneously insisted for the presence of petitioners before the Court without following the provisions of Section 256(2) of Cr.P.C. despite they have engaged the counsel to appear for them. Even though, the legal representatives of the original complainant Sri. A.Krishnappa are diligent, no opportunity was given to the petitioners and the case was erroneously dismissed. Therefore, the petitioners who are having good case and all chances of success in the said bouncing of cheque case wherein the accused is due to the tune of Rs.4,00,000/-. Therefore, the impugned order is liable to be interfered with as it has been passed in a hurry without application of mind and without providing right of hearing to the petitioners concerned. Whereas in the petition, it is specifically stated relating to the limitation issues. The impugned order passed on 13.01.2017 by the XVI Addl. Chief Metropolitan Magistrate, Bengaluru and the petitioners have obtained the certified copy on 20.02.2017. Therefore, this petition filed by the legal representatives of the deceased is well within time. On all these grounds seeking for quashing the orders passed in C.C.No.5288/2015 (PCR NO.2064/2013) dated 13.01.2017 by the learned XVI Addl. Chief Metropolitan Magistrate, Bengaluru. 7. Having gone through the argument addressed by the learned counsel for the petitioners, it is relevant to sate here that the complainant namely A.Krishnappa had instituted a criminal prosecution against the respondent/accused namely B.S.Gururaj in PCR No.2064/2013 for the offence punishable under Section 138 of Negotiable Instrument Act. Subsequent to the institution of the criminal prosecution, the XVI Addl. Chief Metropolitan Magistrate, Bengaluru has taken the cognizance and recorded the sworn statement of the complainant and registered the case in C.C.No.5288/2015. On service of summons, the accused has appeared in the case; evidence of P.W.1 was recorded and the case was posted for cross examination. Subsequent to the institution of the criminal prosecution, the XVI Addl. Chief Metropolitan Magistrate, Bengaluru has taken the cognizance and recorded the sworn statement of the complainant and registered the case in C.C.No.5288/2015. On service of summons, the accused has appeared in the case; evidence of P.W.1 was recorded and the case was posted for cross examination. The fact being so, during pendency of the proceedings, the original complainant- A.Krishnappa died on 17.08.2016 leaving behind the petitioners as his LRs . To substantiate the same, the petitioners have produced death certificate of the complainant - A. Krishnappa as per annexure-C. The petitioners have filed an application under Section 256(2) of Cr.P.C., seeking permission from the Court to come on record for establishing their case against the accused relating to bouncing of cheque at Rs.4,00,000/. However, the trial Court has insisted for the presence of the petitioners before the court and consequently, dismissed the case on 13.01.2017 for default without giving any sound and justifiable reason. 8. It is relevant to state here that Section 482 of Cr.P.C. can be exercised sparingly, cautiously, judicially and judiciously if there is any miscarriage of justice and in order to prevent abuse of the process of law or otherwise to secure the ends of justice. But in the instant case, certainly, there shall be miscarriage of justice in respect of legal representatives of the complainant wherein the complainant had instituted the criminal case against the accused for the offence punishable under Section 138 of N.I.Act. Therefore, the duty casts upon the legal representatives of the deceased to establish their case, if there is no permission given to them to participate in the proceedings as they being the legal representatives of the complainant certainly there is miscarriage of justice. 9. Hence, the petition deserves to be allowed. Accordingly, the petition is allowed quashing the order dated 13.01.2017 passed by the XVI ACMM, Bengaluru in C.C.No.5288/2015 (PCR No.2064/2013). The trial Court is hereby directed to restore the complaint by giving an opportunity to the legal representatives of the complainant so also the accused in accordance with law. However, the LRs of the complainant have filed an application under Section 256(2) of the Cr.P.C. vide Annexure- D , before the Trial Court. They have filed that application seeking permission to come on record to prosecute the case, they being the legal representatives of deceased A. Krishnappa. However, the LRs of the complainant have filed an application under Section 256(2) of the Cr.P.C. vide Annexure- D , before the Trial Court. They have filed that application seeking permission to come on record to prosecute the case, they being the legal representatives of deceased A. Krishnappa. Krishnappa is the author of the complaint who has launched the criminal prosecution against the accused B.S. Gururaju for offences punishable under Section 138 of the NI Act. This application is appended with a Death Certificate of the said A. Krishnappa supported with a Family Tree, which are produced as Annexures A and B respectively. Therefore, it is said that the LRs of the deceased complainant have come forward to participate in the proceedings. Therefore, keeping in view the scope and object of the said provision of law in respect of the application filed by them having some justifiable reason and as they want to establish their rights in the criminal prosecution launched by the deceased A. Krishnappa in order to prove their case against the accused. Therefore, the aforesaid application vide Annexure- D filed by the LRs of the deceased complainant deserves to be considered. Consequently, if the application is pending on the file of the Court of the XVI ACMM, Bengaluru, the said I.A.No.1/2016 stands allowed in the interest of justice and the LRs of the deceased complainant shall be allowed to participate in the proceedings in view of the Doctrine of audi alterem partem. Accordingly, the said I.A.No.1/2016 is considered keeping in view the contentions taken by the counsel for the petitioners in this petition seeking quashing of the order dated 13.01.2017 passed by the aforesaid Trial Court in C.C.No.5288/2015. If the said application is perhaps not allowed, certainly there shall be a miscarriage of justice and so also abuse of process of law. Therefore, the power is exercised under Section 482 of the Cr.P.C. to set right the error if any committed by the Trial Court where the criminal prosecution has been launched against the accused persons, in accordance with law. 10. It is made clear whatever the observation made in this order, the same shall not influence the mind of trial Court but the case in C.C.No.5288/2015 shall be disposed of expeditiously in accordance with law on merits. Ordered accordingly. 11. 10. It is made clear whatever the observation made in this order, the same shall not influence the mind of trial Court but the case in C.C.No.5288/2015 shall be disposed of expeditiously in accordance with law on merits. Ordered accordingly. 11. Registry of this Court is hereby directed to forward a copy of the order to the trial Court forthwith to expedite the matter since case is of the year 2015 and the trial Court shall follow the guidelines of SOP issued by this Court.