M/S Khushboo Electrical And Company Represented By Its Proprietor vs M/S Mahalakshmi Electrical And Lighting Represented By Its Proprietor Sri Mukhesh Mali @ Mukesh Ram

J.M. Khazi, J

Being aggrieved by the dismissal of the complaint filed by him under Section 200 Cr.P.C against the respondent/accused for the offence punishable under Section 138 of Negotiable Instrument (for short "N.I. Act"), appellant who is complainant has filed this appeal under Section 378(4) of Cr.P.C.

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

It is the case of the complainant that he is the Proprietor of M/s Khusbhu Electrical. He is also Proprietor of M/s Mahalakshmi Electrical and Lights. One Ravindranath from Rajasthan is working as a helper in the complainant's shop and also residing in his house. Accused is also running an electrical business. On the inducement of accused, Ravindranath handed over goods worth Rs.16 to 18 lakhs to the accused without intimation to the complainant. After he came to know about it, he filed a complaint with Deputy Commissioner of Police on 14.12.2019. The concerned police summoned accused and enquired. Accused admitted the said allegation and undertook to pay a sum of Rs.4 lakhs in full and final settlement towards the cost of the material and issued 2 post dated cheques for Rs.2 lakhs each. When presented they were dishonoured on the ground "Payment stopped by the drawer". Complainant got issued legal notice to the accused and on his failure to pay the amount due filed the complaint.

The trial Court took cognizance and after due service of summons, accused appeared through counsel and the case was posted for cross-examination of PW-1. In the meanwhile due to COVID-19 Pandemic and issue of SOP, the case was adjourned from time to time. However, on 22.04.2022, the trial Court dismissed the complaint on the ground that complainant and his counsel are absent. On account of COVID-19 restrictions, the complainant and his counsel were absent. The trial Court ought to have granted reasonable opportunity to the complainant to prosecute the case. If the appeal is allowed, no prejudice would be caused to the accused. On the other hand, complainant would be put to great hardship, if the complaint is not restored and hence the appeal.

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

Heard arguments and perused the record.

Thus, complainant prosecuted the accused on the allegations that the cheques issued by him towards repayment of a sum of Rs.4 lakhs came to be dishonoured on the ground "Payment stopped by drawer" and despite due service of legal notice, accused failed to repay the same. However, the trial Court dismissed the complaint on 22.04.2022, on the ground that complainant is not interested in prosecuting the complaint.

The order sheet reveal that after appearance of accused on the basis of application filed by him under Section 145 of N.I. Act, the case was adjourned to 28.12.2021 for cross-examination of PW-1. On that day, the Presiding Officer was on leave and therefore, the case was posted to 06.01.2022.

On 06.01.2022 and 18.01.2022, the case was adjourned due to issue of SOP on account of COVID-19 Pandemic. Thereafter 4 adjournments have been granted for cross-examination of PW-1. On all these dates, complainant remained absent and therefore, on 22.04.2022, the trial Court has dismissed the complaint for non-prosecution.

Perusal of the order sheet reveal that reasonable opportunity was given to the complainant to tender himself for cross-examination. It appears on those dates the counsel for complainant has also not appeared before the trial Court and made submissions for non-appearance of complainant. Despite the fact that reasonable opportunity was given to the complainant, having regard to the cheque amount and the reasons assigned for non-appearance of complainant, this Court is of the considered opinion that complainant is entitled for reasonable opportunity to prove his case. It would not cause any prejudice to the accused as he would get an opportunity to defend himself and accordingly, the following:

ORDER

(i) Appeal is allowed, subject to payment of cost of Rs.5,000/- to the accused before the trial Court.

(ii) The impugned order dated 22.04.2022 passed in C.C.No.4909/2021 on the file of XXI ACMM, Bengaluru is set aside.

(iii) The complainant and accused are directed to appear before the trial Court on 16.04.2024 without waiting for further notice from the trial Court.

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

(v) Of course, if on 16.04.2024, respondent/accused fails to appear before the Court, the trial Court is at liberty to take coercive steps against him for securing his presence.