- 1 - NC: 2025:KHC:6409 CRL.A No. 2100 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. 2100 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 PRESENTLY NO.47/A, AKSHYA NANJUDESWARA LAYOUT Digitally signed by HEMAVATHY GANGABYRAPPA Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:6409 CRL.A No. 2100 of 2018 J.P.NAGAR 5TH PASHE BANGALORE-560 078 …RESPONDENTS (BY SMT. ARYA KUMAR, ADVOCATE FOR SRI. AJAY J.N, ADVOCATE) THIS CRL.A. IS FILED U/S.378(4) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT DATED 21.07.2018 PASSED BY THE XXIV A.S.C.J AND XXII A.C.M.M., BANGALORE IN C.C.NO.55793/2017 - ACQUITTING THE RESPONDENT/ ACCUSED FOR THE OFFENCE P/U/S 138 OF N.I ACT. 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 21.02.2018 passed in C.C.No.55793/2017 by the XXIV A.S.C.J and XXII A.C.M.M Court (SCCH-26), Bengaluru. 2. Heard learned counsel for the appellant - complainant and learned counsel for the respondent - accused 3. The appellant is the complainant and the respondent is the accused in C.C.No.55793/2017 registered against - 3 - NC: 2025:KHC:6409 CRL.A No. 2100 of 2018 the respondent - accused 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 LVII A.C.M.M., Bengaluru. The respondent - accused filed an application under Section 142-A(3) of the N.I.Act, seeking transfer to SCCH-XX. The said application came to be allowed by order dated 01.02.2018 and the case was ordered to be transferred to S.C.C.H-XXII / XXII A.C.M.M, Bengaluru. The parties were directed to appear before the transferee Court on 07.04.2018. Even before the matter was sent to the transferee Court, counsel for the respondent - accused had filed a memo stating that the case was ought to have been transferred to XXIV A.S.C.J and XXII A.C.M.M. Court. The said memo filed by the counsel by advancing the matter has been allowed and case has been ordered to be transferred to XXIV A.S.C.J and XXII A.C.M.M. Court (SCCH-26), Bengaluru. As per the order dated 01.02.2018, the matter was not called in the transferee Court on 07.04.2018. The matter was called on - 4 - NC: 2025:KHC:6409 CRL.A No. 2100 of 2018 15.06.2018 and on that day, the respondent - accused was present and the appellant - complainant and his counsel were absent and the matter was adjourned for recording the plea to 06.07.2018. On 06.07.2018, the respondent - accused was present and it was noted that PW1 and his counsel were absent and the case was adjourned for cross of PW1 to 21.07.2018. On 21.07.2018, noting the absence of the appellant - complainant and his counsel, the learned Magistrate has dismissed the complaint for non prosecution. The said order of dismissal of the complaint for non prosecution has been challenged by the appellant - complainant in this appeal. 4. Learned counsel for the appellant - complainant contends that the order dated 14.02.2018 was passed at the back of the appellant - complainant by advancing the case and the matter was not called before the transferee Court on 07.04.2018 as per the order dated 01.02.2018. Learned counsel further submits that the stage of the case - 5 - NC: 2025:KHC:6409 CRL.A No. 2100 of 2018 was for recording plea, but it was wrongly noted that it is for cross examination of PW1 on 06.07.2018 and 21.07.2018. The counsel further submits that the appellant – complainant and his counsel were not aware of the proceedings taken up before the XXIV A.S.C.J and XXII A.C.M.M. (SCCH-26), Bengaluru. Therefore, there is a bonafide reason for the appellant - complainant for his non appearance on 21.07.2018. 5. Learned counsel for the respondent would contend that the appellant - complainant and his counsel were aware of the transfer of the case and inspite of that they did not appear before the transferee Court and noting the same, the learned Magistrate has rightly dismissed the appeal for non prosecution. Hence, she prayed for dismissal of the appeal. 6. On perusal of the order sheet, it would indicate that on 01.02.2018, the application filed by the respondent - accused under Section 142-A(3) of the N.I.Act has been - 6 - NC: 2025:KHC:6409 CRL.A No. 2100 of 2018 allowed and the case has been transferred to S.C.C.H-XXII / XXII A.C.M.M., Bengaluru and the parties were directed to appear on 07.04.2018. The order sheet further would indicate that on 14.02.2018, the case has been advanced on the application filed by the counsel for the respondent - accused and the memo filed by the respondent - accused has been entertained and the order dated 01.02.2018 has been modified and the case came to be transferred to XXIV A.S.C.J and XXII A.C.M.M Court (SCCH-26), Bengaluru. As per the order dated 01.02.2018, the matter was not called before the transferee Court on 07.04.2018. The matter was called before the transferee Court on 15.06.2018. The said aspect itself would indicate that the appellant - complainant and his counsel were not aware of the proceedings before the transferee Court, more so, the stage of the case was for recording plea and it was wrongly noted in the order sheet that it was for cross examination of PW1. Considering the above aspects, the absence of the appellant - complainant on 21.07.2018 before the transferee Court was for bonafide reason that - 7 - NC: 2025:KHC:6409 CRL.A No. 2100 of 2018 they were not aware of the proceedings before the transferee Court. There are grounds made out for setting aside the impugned order dated 21.07.2018 and to restore the criminal case. In the result, the following; ORDER The appeal is allowed. The impugned order dated 21.07.2018 passed by the XXIV A.S.C.J and XXII A.C.M.M (SCCH-26), Bengaluru is set-aside. C.C.No.55793/2017 is ordered to be 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