TMI Blog2021 (2) TMI 113X X X X Extracts X X X X X X X X Extracts X X X X ..... t there is a prima-facie case to proceed, the Court has to apply it's mind as under Section 142 of N.I.Act for taking cognizance under the aforesaid provision. But the cognizance arise in a proceeding under Section 138 of the N.I.Act, it is pre-cognizance and post cognizance. But post cognizance it is only after initiation of criminal prosecution against the accused by perusal of the material facilitated by the complainant and thereafter to proceed in further to prove the guilt of the accused by producing worthwhile evidence which may end in conviction or acquittal. But it is the domain vested with the trial Court. The trial Court has to give credentiality to Section 138 of the N.I.Act which is a special enactment and so also, give cred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... M.R.Hiremathad. But none appear for respondent either through video conference or present physically before the Court. However, Sri M.Ramakrishna has filed memo seeking permission to represent the petitioner as his name is not mentioned in the Vakalath. Keeping in view the said memo, Sri M.Ramakrishna, learned counsel is permitted to represent the petitioner. 2. This petition is filed by the petitioner seeking to quash the order passed in C.C.No.675/2013 arising out of PCR No.127/2013 dated 22.08.2016 and so also, quash the order dated 31.08.2016 passed by the Prl.Civil Judge and JMFC, Harihara. 3. It is transpired in the private complaint filed by the respondent/complainant before the Civil Judge and JMFC, Harihara for the offence p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 23.08.2016, the complainant was present and accused was absent. Objection to the application was filed by the accused. For hearing on application by both side, the matter was listed on 24.08.2016. Thereafter, on 24.08.2016, the complaint was present. Memo with decision filed by the accused and complainant. The case was posted to 27.08.2016. Thereafter, the matter was adjourned to 31.08.2016. On 31.08.2016 the order was passed by the trial Court dismissing the application filed by the complainant for restoration for no merits. 6. It is contended by petitioners' counsel that the complainant had filed the private complaint against the accused after following the requisite conditions of the N.I.Act. But the same came to be dismissed for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lainant for encashment, but the same came to be returned with a bank endorsement as funds insufficient in the account of the account holder . The accused had issued bogus cheque to the complainant in order to cause wrongful loss to the complainant and wrongful gain for himself. The cheque amount was of ₹ 2,40,000/- in favour of the complainant towards repayment of due amount. However, the detail description of the cheque is mentioned in the private complaint filed by the complainant. But the case in C.C.No.675/2013 came to be dismissed for non- prosecution on 22.08.2016 and on the same day, the complainant had filed application for restoration of the dismissal order for non-prosecution. After hearing both the sides, the court below d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... then there shall be Doctrine of beyond reasonable doubt if the case ends in conviction and if any doubt arise, then the case ends in acquittal, it is based upon the evidence facilitated by the complainant to establish his case and similarly the witnesses have to be subjected to cross-examination on the part of the defense. Even as under Section 139 of the N.I.Act, there is a presumptive value neither the evidence of the complainant or defense and the proceedings has to be taken in terms of the prosecution. 10. In the instant case, the petitioner/complainant being a gravamen of the charge, has challenged the order of for dismissal of his complaint for non-prosecution by urging various grounds. Therefore, it is deemed proper for intervent ..... X X X X Extracts X X X X X X X X Extracts X X X X
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