DATED:13.09.2019

IN

CRIMINAL

CASE

NO.1246/2017, ON THE FILE OF THE II-ADDITIONAL CIVIL

JUDGE/JMFC-II BIDAR.

2

THIS APPEAL COMING ON FOR ADMISSION THIS DAY,

THE COURT DELIVERED THE FOLLOWING:

JUDGEMENT

This appeal is filed challenging the dismissal of

the complaint i.e. judgment dated 13.09.2019 in

Criminal Case No.1246/2017 by II-Addl. Civil Judge

& JMFC-II, Bidar.

2.

The appellant was the complainant and

respondent was the accused before the Trial Court.

They

will

be

referred

as

such

in

appear

for

convenience.

3.

The complainant through the power of

attorney holder filed a complaint under Section 200

of Cr.P.C. for the offence punishable under Section

138 read with Section 142 of Negotiable Instruments

Act, (hereinafter referred to as 'N.I.Act' for short).

4.

It is alleged that this respondent/accused

is known to him and for the purpose of his business

he used to barrow the amount and return the same

within agreed period. The accused was involved in a

real estate and other business. It is further

3

contended that the accused advanced a loan of

Rs.42,21,000/- and the accused promised to repay

the same in November 2016. But in spite of request,

he did not repay the amount, but he issued a cheque

bearing

No.465925

dated

15.12.2016

for

about

Rs.42,21,000/-,

drawn

from

Corporation

Bank

Branch Bidar, in favour of complainant and asked

him

to

present

the

same.

Accordingly,

the

complainant

presented

the

cheque,

but

it

was

returned with an endorsement as 'Funds Insufficient'

as per memo dated 31.12.2016.

5.

Then,

the

complainant

requested

the

respondent to repay the amount. As he did not pay

the amount, the complainant issued legal notice on

18.01.2017, which was returned as duly served on

accused on 20.01.2017, but the accused did not

reply the same, nor paid the cheque amount.

Therefore, the complaint is to be filed after expiry of

fifteen days and within 90 days from the date of

cause of action. But however, there is some delay on

his part. Then, he filed the complaint along with

4

application for condonation of delay and with a

prayer to punish the respondent/accused.

6.

The Trial Court records indicate that along

with

complaint,

the

complainant

has

filed

interlocutory application under Section 142 (proviso)

read with Section 473 of Cr.P.C. to condone the

delay along with affidavit. As the complainant

engaged in his professional work as busy Medical

Officer/Eye Surgeon and also as per assurance given

by the accused to arrange the funds to honour the

cheque

and

also

due

to

non-receipt

of

postal

acknowledgement from post office about service of

notice, there is a delay. Hence, he prayed to

condone the delay. It appears thereafter, the sworn

statement

of

power

of

attorney

holder

of

the

complainant was recorded and summons were issued

to the accused.

7.

The plea of the accused was recorded.

Then, the complainant thereafter gave evidence as

PW.1 and got marked five documents as Exs.P1 to

P5. After recording 313 Cr.P.C. statement of accused

5

and hearing the arguments, learned JMFC, dismissed

the

complaint.

Aggrieved

by

the

same,

the

complainant/appellant has filed this appeal.

8.

Heard Sri.R.S.Lagali, learned counsel for

the appellant and Sri.Sandeep V. Patil, learned

counsel for the respondent.

9.

Learned counsel for the appellant argued

that though the learned JMFC has raised seven

points for consideration, but he has not answered

point Nos.1 to 4 and only answered point Nos.5 and

6 and holding that the power of attorney holder is

not competent as he has no personal knowledge

about transaction and there is no sufficient grounds

to

condone

the

delay,

hence,

complaint

was

dismissed. Learned counsel further argued that, such

procedure followed by the learned JMFC is illegal.

10.

Learned counsel for the appellant further

argued that there is a delay of 2 months 27 days in

filing the complaint. Because, the appellant is a

busy Medical Practitioner and Eye-Surgeon and was

6

occupied in his professional engagement and work,

so he could no