Mohan N vs Kantharaj N

J.M. Khazi, J

Though this appeal is listed for admission, 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 him against respondent/accused for the offences punishable under Section 138 of N.I.Act, contending that the cheque issued by the respondent/accused for a sum of Rs.6,00,000/- towards repayment of legally recoverable debt came to be dishonored. After issuing legal notice and on failure of respondent/accused to pay the amount due, he filed complaint under Section 200 Cr.P.C. After appearance of accused and he pleading not guilty, complainant has examined himself as PW-1 and got marked the documents. After granting two adjournments for cross-examination and on the ground that complainant has not tendered himself for cross-examination, the trial Court has discarded the evidence of complainant and proceeded to dispose of the matter on merits and dismissed the complaint. Reasonable opportunity is not given to tender the complainant for cross-examination and hurriedly dispose of the matter and prays to allow the appeal, remand the case for fresh disposal after providing reasonable opportunities for both parties.

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

After due service of notice, respondent has appeared through counsel.

From the perusal of the order sheet indicate that after closure of examination-in-chief of the complainant two opportunities were given and after noting that complainant has not tendered himself for cross-examination, the trial Court has proceeded to discard his evidence. Having regard to the fact that the amount involved in the case is Rs.6,00,000/-, this Court is of the considered opinion that complainant deserves reasonable opportunity to tender himself for cross-examination and also lead further evidence, if any. No prejudice would be caused to the accused as he would get opportunity to resist the case of the complainant. Having regard to the fact that this appeal is of the year 2018, this Court is of the considered opinion that it would be necessary to compensate the respondent/accused for the delay by imposing cost.

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 on cost of Rs.5,000/-.

(ii) The impugned judgment and order dated 05.02.2018 passed in C.C.No.13031/2018 on the file of XIII Addl.CMM, Bengaluru is set aside.

(iii) The complainant and respondent/accused are directed to appear before the trial Court on 08.08.2023 without waiting for further notice from the trial Court.

(iv) The complainant is directed to deposit cost of Rs.5,000/- before the trial Court and accused is entitled to withdraw the same.

(v) The trial Court is directed to decide the case in accordance with law, after providing reasonable opportunity to both parties.

(vi) Of course, if on 08.08.2023, respondent/accused fails to appear before the Court, the trial Court is at liberty to take coercive steps against him for securing his presence.