MKV Engineering, Proprietorship Concern vs M/S Viviiansinfraa Vision Private Limited

J.M. Khazi, J

Though this appeal is listed for orders, with the consent of both learned counsel for parties, the matter is taken up for final disposal.

This appeal is by the complainant, challenging the dismissal of the complaint filed by it against respondent/accused for the offence punishable under Section 138 of N.I.Act, contending that vide work order dated 30.03.2018, respondent was entrusted with work of construction and a total sum of Rs.25,00,000/- was paid. However, respondent/accused failed to commence the work and on insistence of the complainant, accused issued cheque dated 30.05.2018 for Rs.25,00,000/-. When it was presented for realization, it was returned dishonoured on the ground of "payment stopped by drawer". The respondent/accused have intentionally not received the legal notice. Therefore, complainant filed the complaint.

It is further contended by the complainant that keeping open the question of limitation, the trial Court issued notice. The RPAD cover was returned "unclaimed". However, the trial Court ordered for further steps and issued hand summons. Due to covid, the notice could not be served on the accused by hand summons. Ultimately, on 13.09.2022, the trial Court has dismissed the complaint on the ground of "not taking steps". In the circumstances, it is necessary to provide reasonable opportunity to the complainant to prosecute the complaint and prays to allow the appeal, set aside the impugned order and remand the case for disposal.

For the sake of convenience, the parties are referred to by their rank before the trial Court.

Since the complaint came to be dismissed before the appearance of accused, notice to respondent/accused is dispensed with.

Thus, complainant which is a company has filed the complaint alleging offence punishable under Section 138 of the NI Act, on the ground that respondent No.1-Company represented by the other accused, though received Rs.25,00,000/-, failed to execute the work entrusted to it and when insisted upon has issued a cheque for Rs.25,00,000/-. The same was returned "dishonoured" on the ground of "payment stopped by drawer". The order sheet reveal that at the first instance notice sent to respondent is returned "unclaimed". Instead of considering it as deemed service, the Trial Court has directed complainant to take fresh steps. It has also ordered for issue of hand summons. Complainant has expressed its inability to serve the summons to respondents due to covid. Ultimately, on 13.09.2022, the Trial Court has dismissed the complaint on the ground that notice on I.A for condonation of delay is not served.

From the order sheet, it is evident that though notice was sent through RPAD, respondents have failed to receive the same and as such, it is returned as unclaimed. It appears that respondents have intentionally evaded service of notice. Having regard to the fact that respondents are Company and its Directors and the Cheque amount involved is Rs.25,00,000/-, this Court is of the considered opinion that complainant must be provided with reasonable opportunity to secure the presence of accused and proceed with the matter. No prejudice would be caused to the accused as they would get opportunity to resist the case of the complainant.

For the above reasons, the impugned order is liable to be set aside and matter requires remand for disposal in accordance with law and accordingly, I proceed to pass the following:

ORDER

(i) Appeal is allowed.

(ii) The impugned judgment and order dated 13.09.2022 passed in PCR.No.11614/2018 on the file of XIX A.C.M.M., Bengaluru is set aside.

(iii) The complainant is directed to appear before the trial Court on 24.07.2023 without awaiting for further notice from the trial Court.

(iv) The trial Court is directed to secure the presence of accused and proceed with the matter.