IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 3RD DAY OF JANUARY 2019 BEFORE THE HON’BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY CRIMINAL APPEAL No.1499 OF 2016 BETWEEN:
D.Jayanna, Aged about 62 years, S/o G.H.Doddaiah, R/at No.J-59, Belimath Road, Cottonpet, Bengaluru -560 053. .. Appellant ( By Sri B.V.Manjunatha, Advocate ) AND:
Sri M.Vasu, R/at No.11/4, 9th `A’ Main, 4th Cross, K.P.Agrahara, Bengaluru – 560 023. .. Respondent ( By Sri Siddanooru Vishwanatha, Advocate ) This Criminal Appeal is filed under Section 378(4) of Cr.P.C praying to set aside the judgment and order dated 25.6.2016, passed by the XIX Addl.Chief Metropolitan Magistrate, Bengaluru, in C.C.No.17788/2009, acquitting the respondent/accused for the offence punishable under Section 138 of N.I.Act.
This Criminal Appeal coming on for Admission this day, the Court delivered the following:
JUDGMENT The appellant has preferred this appeal challenging the order dated 25.6.2016, passed by the learned XIX Addl.Chief Metropolitan Magistrate, Bengaluru, (hereinafter for brevity referred to as `trial Court’), in C.C.No.17788/2009, wherein the trial Court has dismissed his complaint filed under Section 200 of Code of Criminal Procedure (hereinafter for brevity referred to as `Cr.P.C.’).
2. Learned counsel from both side present.
Even though the matter is listed at the stage of admission, however, with the consent from both side, the matter is taken up for its final disposal.
3. It is the contention, as well the argument of the learned counsel for the appellant that since the wife of the complainant was suffering from viral fever and dengue and was hospitalised, he could not appear before the Court on 25.6.2016 when the impugned order came to be passed. As such, there are all the reasons for the non-appearance of the complainant in the trial Court, still the trial Court ignoring the said fact, has dismissed the complaint.
Learned counsel for the respondent in his arguments submitted that despite granting sufficient time i.e., more than a year, the complainant failed to appear in the trial Court and present himself for cross-examination. As such, the trial Court was constrained to pass the impugned order, in which interference by this Court is not warranted.
Admittedly, the complaint of the appellant in the trial Court was under Section 200 of Cr.P.C. against the present respondent for the offence punishable under Section 138 of Negotiable Instruments Act, 1881.
A perusal of the order sheet of the trial Court, which has been now placed before this Court, go to show that several and sufficient opportunities were given by the trial Court for the complainant to tender himself for cross-examination as PW-1. After his examination-in- chief was recorded on 2.5.2016, the matter was adjourned to 13.5.2016 for his cross-examination, on which day, there was no representation from the complainant side. As such, the matter was again adjourned to 23.5.2016.
On 23.5.2016 also, neither PW-1 nor his counsel were present, as such, the matter was kept by and called again at 12.15 p.m. Once again the complainant/PW-1 was absent and the matter was adjourned to 2.6.2016.
On 2.6.2016 also, there was no representation from the complainant side when the matter was called.
Observing that PW-1 was not present for his cross- examination, the matter was thereafter adjourned to 18.6.2016.
A perusal of the order sheet dated 18.6.2016 of the trial Court go to show that even on the said date also, the complainant/PW-1 was absent and he did not tender himself for cross-examination. As such, imposing a cost of `250/-, as a final opportunity, the matter was adjourned to 25.6.2016.
On 25.6.2016, the matter was taken up in four rounds. The exemption application filed from the complainant’s side was rejected and the matter was kept by and was taken up at several intervals, still, there was no appearance of complainant/PW-1 for his cross- examination. Recording the entire proceeding in that regard and also noticing that the cost imposed on the previous occasion was also not paid, the trial Court in the fourth round, proceeded to pass the impugned order, dismissing the complaint for non-prosecution.
The above recording of the proceedings by the trial Court clearly go to show that sufficient opportunities had been granted to the complainant to tender himself for cross-examination, despite which, he failed to appear. As such, the trial Court was constrained to pass the impugned order. However, the submission made by the learned counsel for the appellant that the absence of complainant/PW-1 on the said date was for the genuine reason of alleged ill-health of his wife, who subsequently succumbed to the illness, also cannot be ignored. In that regard, he has also produced the copy of the application said to have been filed by him under Section 256 of Cr.P.C. along with the copy of the medical certificate.
In the said circumstances of the case and also considering the nature of the complaint, I am of the view that, in the best interest of justice, by imposing cost to compensate the inconvenience caused to the accused in the process, the appeal be allowed.
Accordingly, the Appeal is allowed, on a cost of `10,000/-, payable by the appellant to the respondent within two weeks from today. Subject to payment of cost, the order dated 25.6.2016, passed by the learned XIX Addl.Chief Metropolitan Magistrate, Bengaluru, C.C.No.17788/2009, is set aside and C.C.No.17788/2009 is restored on the file of the trial Court at the stage at which it was while passing the impugned order dated 25.6.2016.
Both parties are directed to appear before the trial Court without anticipating any notice or summons from the Court, on 28.1.2019 and to pursue further proceedings without taking any unreasonable adjournments since the matter is of the year 2009.
The Registry is directed to transmit a copy of this order along with lower Court records to the trial Court immediately.
Sd/- JUDGE bk/