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2025 DAILYLAW 23181 (KAR)

M/S GILANI ENTERPRISES v. M/S GENERAL ENGINEERING

CRL.A/2102/2018 · 2025-02-13

Shivashankar Amarannavar

Criminal Appealbody2025

Judgment text

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- 1 - NC: 2025:KHC:6411 CRL.A No. 2102 of 2018 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR CRIMINAL APPEAL NO. 2102 OF 2018 BETWEEN: M/S. GILANI ENTERPRISES NO.22/1, 107, SHILLY PLAZA K.KAMARAJ ROAD BANGALORE-560 042 REPRESENTED BY ITS MANAGING PARTNER SRI. ALNASIR ABDUL AZIZ GILANI …APPELLANT (BY SMT. ANITHA R, ADVOCATE FOR SRI. T.V. VIJAY RAGHAVAN, ADVOCATE) AND: 1. M/S GENERAL ENGINEERING INFRABUILD PVT LTD NO.665, 38TH CROSS, 15TH MAIN 4TH T BLOCK, JAYANAGAR BANGALORE-41 REPRESENTED BY ITS DIRECTOR SMT. SAVITHA G ANANTH 2. SMT. SAVITA G. ANANTH NO.48/A, "SRUSTI" C/O B.K. RAJENDRAN 11TH CROSS, 6TH MAIN ROAD 3RD PHASE, J P NAGAR BANGALORE-560 078 Digitally signed by HEMAVATHY GANGABYRAPPA Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:6411 CRL.A No. 2102 of 2018 PRESENTLY R/AT NO.47/A, AKSHYA NANJUDESWARA LAYOUT J.P.NAGAR 5TH PASHE BANGALORE-560 078 …RESPONDENTS (BY SMT. ARYA KUMAR, ADVOCATE FOR SRI. AJAY J.N, ADVOCATE FOR R2; VIDE ORDER DT.20.06.2023 - NOTICE TO R1 IS HELD SUFFICIENT) THIS CRL.A. IS FILED U/S.378(4) CR.P.C PRAYING TO SET ASIDE THE ORDER OF DISMISSAL FOR NON- PROSECUTION AS PER ORDER DATED 15.06.2018 IN C.C.NO.449/2016 ON THE FILE OF THE XXIV A.S.C.J., AND XXII A.C.M.M.,(SCCH-26) BANGALORE AND TO RESTORE THE CASE C.C.NO.449/2016 TO THE FILE OF THE XXIV A.S.C.J., AND XXII A.C.M.M.,(SCCH-26) BANGALORE FOR RECORDING OF FURTHER PROCEEDINGS FROM THE STAGE OF THE COMPLAINANTS EVIDENCE AND TO DISPOSE OF THE CASE IN ACCORDANCE WITH LAW. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR ORAL JUDGMENT 1. This appeal is filed by the appellant – complainant challenging the order dated 15.06.2018 passed in C.C.No.449/2016 by the XXIV A.S.C.J and XXII A.C.M.M Court (SCCH-26), Bengaluru and to restore C.C.No.449/2016. - 3 - NC: 2025:KHC:6411 CRL.A No. 2102 of 2018 2. The appellant is the complainant and the respondent is the accused in C.C.No.449/2016 registered for the offence under Section 138 of the Negotiable Instruments Act, 1881 (for short hereinafter referred to as “N.I.Act”). The said criminal case was pending on the file of XLII A.C.M.M., Bengaluru. The said criminal case was listed on 31.10.2017 awaiting the order to be passed in Crl.Misc.No.3208/2017 by the Principal City Civil and Sessions Judge, Bengaluru. There was a stay order in Crl.Misc.No.3208/2017 dated 19.04.2017 for further proceedings in C.C.No.449/2016. Therefore, case came to be adjourned awaiting orders from 08.05.2017, 30.06.2017, 31.07.2017, 31.08.2017, 03.10.2017 and 31.10.2017. On 31.10.2017, the matter was called and it was adjourned to 31.12.2017 awaiting orders. In the meantime, case came to be transferred vide notification No.ADM 1/19/2017 dated 20.11.2017 of C.M.M, Bengaluru to XXIV A.S.C.J and XXII A.C.M.M (SCCH-26), Bengaluru. The matter was taken up before the transferee Court on 01.01.2018 and it was adjourned for recording plea - 4 - NC: 2025:KHC:6411 CRL.A No. 2102 of 2018 to 02.02.2018. On 22.02.2018, counsel for the respondent - accused filed a memo for taking up the matter on 07.04.2018, as the other two criminal cases which were transferred to that Court were ordered to be listed on 07.04.2018. On 07.04.2018, the case was listed for recording plea and noting absence of the respondent – accused, the matter was adjourned and it was adjourned for recording the complainant’s evidence to 02.05.2018. Thereafter, the matter came to be adjourned to 08.06.2018. On 15.06.2018 noting the absence of the appellant - complainant, the complaint came to be dismissed for non-prosecution. The said order has been challenged by the appellant - complainant in this appeal. 3. Heard learned counsel for the appellant - complainant and learned counsel for the respondent - accused. 4. Learned counsel for the appellant - complainant would contend that as per the order sheet dated 31.10.2017, the said criminal case came to be adjourned - 5 - NC: 2025:KHC:6411 CRL.A No. 2102 of 2018 to 31.12.2017. In the meantime, case came to be transferred by notification dated 20.11.2017 to SCCH-26, Bengaluru. The matter was not taken up on 31.12.2017 and it was taken up on 01.01.2018 and the appellant - complainant was not aware of taking up the said case on 01.01.2018. Therefore, the appellant – complainant could not present on the subsequent dates. The absence of the appellant - complainant on 15.06.2018 is not malafide but for the bonafide reason. With this, she prayed to allow the appeal and restore the criminal case. 5. Learned counsel for the respondent – accused would contend that the appellant - complainant was aware of transfer of the criminal case to S.C.C.H-26, Bengaluru and his absence on the dates of hearing before the transferee Court are for malafide reasons. With this, she prayed to dismiss the appeal. 6. There was stay of further proceedings in C.C.No.449/2016 by the order dated 19.04.2017 passed in Crl.Misc.No.3208/2017 by the Principal City Civil and - 6 - NC: 2025:KHC:6411 CRL.A No. 2102 of 2018 Sessions Judge, Bengaluru. The stay order has been noted in the order sheet dated 25.04.2017. Thereafter, the matter came to be adjourned to 08.05.2017, 30.06.2017, 31.07.2017, 31.08.2017, 03.10.2017 and 31.10.2017. On 31.10.2017, the matter came to be adjourned to 31.12.2017 awaiting orders. In the meantime, by notification dated 20.11.2017 of C.M.M, Bengaluru bearing No.ADM 1/19/2017, the case came to be transferred to XXIV A.S.C.J and XXII A.C.M.M (SCCH- 26), Bengaluru. The said case which was adjourned to 31.12.2017 was not taken up in the transferee Court on that day and it was taken up on 01.01.2018. The appellant - complainant was not aware of taking of the said criminal case on 01.01.2018 by the transferee Court. Therefore, the appellant - complainant was not present on 01.01.2018 and subsequent dates ie., on 02.02.2018, 22.02.2018, 07.04.2018, 02.05.2018, 08.06.2018 and 15.06.2018. Therefore, the absence of the appellant - complainant is for the bonafide reasons that he was not aware of taking up the matter before the transferee Court. - 7 - NC: 2025:KHC:6411 CRL.A No. 2102 of 2018 Considering the said aspect, the impugned order dated 15.06.2018 dismissing the complaint of the appellant - complainant for non-prosecution requires to be set-aside and C.C.No.449/2016 requires to be restored. In the result, the following; ORDER The appeal is allowed. The impugned order dated 15.06.2018 passed in C.C.No.449/2016 by the XXIV A.S.C.J and XXII A.C.M.M (SCCH-26), Bengaluru is set-aside and C.C.No.449/2016 is restored. The appellant - complainant and the respondent - accused are directed to appear before the Trial Court on 10.03.2025 without awaiting any Court notice. Registry is directed to send the Trial Court records along with a copy of this order to the Trial Court forthwith. Sd/- (SHIVASHANKAR AMARANNAVAR) JUDGE GH List No.: 1 Sl No.: 20.2