JUDGMENT :

1. This appeal is listed for Admission. With the consent of learned counsel for both the parties, the matter is taken up for final disposal.

2. In this appeal, the appellant has challenged the order passed by the trial Court in C.C.No.13930/2014 dated 24.08.2016 whereby, the trial Court dismissed the complaint and acquitted the accused for the offence punishable under Section 138 of NI Act.

3. At this point, it is relevant to refer to the order sheet maintained by the trial Court. The trial Court in its order dated 24.08.2016, recorded a finding that, the complainant is irregular in appearing before the Court. PW.1 has not tendered for crossexamination in spite of giving sufficient opportunity. It appears that the complainant is not interested in prosecuting the matter. Since, PW.1 has not tendered for crossexamination, the evidence of PW.1 is discarded and the complaint is dismissed. Consequently, the accused is acquitted of the offence punishable under Section 138 of NI Act. The bail bond stands cancelled.

4. Heard the learned counsel for the appellant and learned counsel for the respondent. Perused the impugned order and also the averments made in the complaint initiated by the complainant in C.C.No.13930/2014 which arose in PCR No.27104/2011.

5. It is contended by the learned counsel for the appellant that the accused, who is the proprietor of M/s.N.N.ISPAT approached the complainant and borrowed a sum of Rs.20 Lakhs on 27.08.2010 for the purpose of his business at Bangalore City. He executed an on Demand Promissory Note and Consideration Receipt in favour of the complainant, who initiated the proceedings against the accused for the offence punishable under Section 138 of the NI Act for dishonour of cheque. When the complainant presented the cheque for encashment through her banker namely Canara Bank, Madhavanagar Branch, Bangalore, the said cheque was dishonoured on 17.10.2011 for the reason ‘Account Closed’ by the accused banker. Subsequent to receipt of endorsement issued by the Bank, the complainant, who followed the requisite conditions as contemplated under Section 138 of NI Act issued notice to the accused through RPAD. Despite the notice has been duly served on the accused, he did not properly response to the contents of the notice relating to the cheque amount of Rs.16 lakhs. Subsequently, the complainant initiated proceedings against the accused for the offence punishable under Section 138 of NI Act.

6. Learned counsel for the appellant further submits that during the pendency of the proceedings before the trial Court, there was a negotiation of settlement by the accused. Considering the said aspect, the trial Court posted the matter for settlement or for cross of PW.1. In spite of the same, PW.1 did not appear before the Court of law and stood for crossexamination. In the meanwhile, the complaint came to be dismissed and the same has been reflected in an order passed by the trial Court in C.C.No.13930/2014 dated 24.08.2016 and acquitted the accused. Learned counsel further submits that the complainant has produced certain documents in order to establish her case. Therefore, opportunity ought to be given to the appellant/complainant to establish her case, if not, certainly it would cause miscarriage of justice to the complainant. These are all the contentions that have taken by the learned counsel for the appellant and seeks to allow the appeal and set aside the impugned order passed by the Court of 21st Additional Chief Metropolitan Magistrate, Bangalore in C.C.No.13930/2014 dated 24.08.2016.

7. Learned counsel for the respondent counter to the arguments advanced by the learned counsel for the appellant submits that there is no dispute regarding proceedings initiated by the complainant against the accused for the offence punishable under Section 138 of the NI Act. The initiation of the proceedings by the complainant is only after Bank issuing an endorsement stating that ‘Account Closed’ and after following t