IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8th DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR.JUSTICE K.N. PHANEENDRA CRIMINAL APPEAL NO.1959/2016 BETWEEN SMT.BHAGHYALAXMI.N. W/O B S MAHESH, 45 YEARS, NO 23, 4TH B CROSS, NANJUNDESHWARANAGAR, VINAYAKANAGARA, KAMAKSHIPALYA, BENGALURU– 560056. ... APPELLANT (BY SRI.H.R.NAGARAJU, ADVOCATE FOR SRI.G.N.ANANTHAPADMANABHA, ADVOCATE) AND SMT.LATHA PATEL, W/O.LATE THIMMAIAH, MAJOR, NO.385, 7TH MAIN ROAD, MASTI VENKATESHWARA IYANGAR ROAD, ITI LAYOUT, BANGALORE – 560056.
ALSO AT:
WORKING AS S D C, GOVRNMENT OF KARNATAKA, ELECTRICAL INSPECTOR, OFFICE OF THE DEPUTY CHIEF ELECTRICAL INSPECTOR, BANGALORE NORTH, NO 6,7,8/C 1ST FLOOR, SUDHA COMMERCIAL COMPLEX, 4TH N BLOCK, DR RAJKUMAR ROAD, RAJAJINAGAR ENTRANCE, BANGALORE – 560010. ... RESPONDENT (BY SRI.N.M.SRINIVAS MURTHY, ADVOCATE) THIS CRL.A. IS FILED U/S.378(4) OF CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT AND ORDER DATED 30.04.2014 PASSED BY THE XXII A.C.M.M., BANGALORE IN C.C.NO.10584/2009 - ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE P/U/S 138 OF N.I. ACT.
THIS CRIMINAL APPEAL COMING ON FOR ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Heard the learned counsel for the appellant as well as the learned counsel for the respondent.
2. I.A.No.2/2016 is filed for seeking special leave to appeal. As this Court has heard the arguments on I.A.No.1/2016, I.A.No.2/2016 requires to be allowed and accordingly, allowed granting special leave to appeal to the appellant.
3. Before going to the stage of admission of appeal, it is incumbent upon the Court to pass appropriate orders with regard to condonation of delay of 874 days in preferring the appeal.
4. The facts of the case discloses that the complainant (appellant herein) has filed a complaint under Section 138 of Negotiable Instruments Act against the respondent herein. The case was registered and summons was issued and the accused-Bank appeared before the Court in the year 2009. In the year 2010 i.e. from 21.9.2010 the accused remained absent. The complainant did not take steps to secure the presence of the accused. Even from 28.3.2013, the complainant also remained absent before the Court on various occasions. The Court taking into consideration the latches on the part of the complainant passed order dated 30.4.2014 in the following manner:
“Complainant absent. The complainant failed to secure the accused from the year 2009. Hence, no purpose will be served by keeping this case long pending. The parties might have compromised this case. Hence, the complainant is dismissed for not taking proper steps and for default.”
Against this order, the present appeal is preferred.
5. It is seen from the affidavit filed in support of the application that the complainant appeared before the trial Court on all the dates of hearing and the respondent accused was also present before the Court on several occasions and respondent/accused defence evidence was recorded on 13.1.2019 by the Court. After closure of the defence evidence, the respondent-accused filed application under Section 45 of the Indian Evidence Act on 1.4.2010. The trial Court was pleased to allow the said application. Aggrieved by the said order, the complainant preferred Criminal Petition No.5133/2010 and also filed a memo before the trial Court on 20.10.2010 regarding the pendency of the criminal petition before this Court and the same was recorded by the trial Court in the order sheet. However, at the time of filing of the said memo, the respondent/accused was not present before the Court. On 22.4.2014, the case was transferred to XXII A.C.M.M. at Bengaluru. The trial Court without issuing any notice to the complainant-appellant regarding transfer of the case and also without securing the accused, dismissed the complaint for not taking proper steps and for default. It is further stated that after receiving the order passed by the trial Court, he has challenged the same before this Court on 20.10.2010 by filing an application under Section 482 of Cr.P.C. and this Court was pleased to observe that the order of the trial Court amounts to acquittal of the accused from the charges and it is an appealable order. Hence, on the request of the learned counsel for the petitioner, this Court was pleased to dismiss the petition as withdrawn with liberty to file an appeal before the proper forum on 6.11.2014. It is contended that the complainant was unable to file the criminal appeal within time because she was suffering from Jaundice for the last one year and taking Ayurvedic medicine and was also unable to take certified copy of the judgment and therefore, there is delay is 874 days in preferring the appeal. This application is seriously objected by the other side.
6. On looking to the above said facts narrated in the affidavit filed in support of the application, without considering the same this Court has dismissed the petition filed under Section 482 Cr.P.C. on 6.11.2014 as withdrawn. This appeal is preferred on 24.7.2019. There is a delay of more than 874 days as stated in the affidavit. But absolutely there is no material placed before the Court to substantiate as to how long the complainant was suffering from Jaundice.
Even accepting that she was suffering from Jaundice for one year, thereafter also there is delay of more than 1 ½ years, which has not been properly explained. No material is placed before this Court to show that she has taken treatment for the said disease. Absolutely, there is no material to substantiate the aforesaid statement made in paragraph 4 of the affidavit. Under the above said circumstances, I do not find any reasons to condone the delay in preferring this particular appeal. Hence, the appeal is hit by limitation. Therefore, I.A.No.1/2016 deserves to be dismissed. Accordingly, I.A.No.1/2016 is dismissed.
Consequently, the appeal is also dismissed.
Sd/- JUDGE *alb/-.