IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF FEBRUARY 2019 BEFORE THE HON’BLE Dr. JUSTICE H.B. PRABHAKARA SASTRY CRIMINAL APPEAL No.427 OF 2015 BETWEEN:
Kishore Kumar B S/o. Babuthmalji, Aged about 43 years, R/at No.627, H.M.Road, Davanagere-577 001.
(By Sri. M.R.Hiremathad, Advocate) AND:
Munna Pailwan N S/o. Abdul Gaffar Sab, Aged about 50 years, Member of Davanagere Mahanagara Palike, R/o. N.M.P. 1st Main, 14th Cross, Opposite District Beedi Labour Association, (Sir Mirza Ismail Nagara) Azad Nagar, Davanagere-577 001.
…Appellant …Respondent This Criminal Appeal is filed under Section 378(4) of Cr.P.C praying to set aside the order dated: 11.02.2015 passed by the 3rd Addl. JMFC, Davanagere, in C.C.No.22/2014, acquitting the respondent/accused for the offence punishable under Section 138 of Negotiable Instruments Act.
This Criminal Appeal coming on for Orders, this day, the Court made the following:
O R D E R Called again in the third round.
2. Neither the appellant nor the learned counsel for the appellant present. Both of them are absent.
3. A perusal of the order sheet would go to show that in this appeal where the appellant has challenged the judgment of acquittal passed by the Court below, acquitting the present respondent herein(accused therein) for the offences punishable under Section 138 of Negotiable Instruments Act, 1881 (hereinafter referred to as “NI Act” for brevity), this Court had issued bailable warrant on 28.06.2018. Since the same was not served because of inappropriate address, once again, at the request of the learned counsel for the appellant, for re-issuance of bailable warrant, on his submission that the appellant would assist the Police and ensure the execution of the bailable warrant upon the accused, this Court on 29.10.2018, ordered for re- issuance of bailable warrant upon the accused. Thereafter on several dates of hearing when the matter was taken up, the appellant as well as his counsel remained absent. Thus, on 30.01.2019, noticing all these details, this Court, as a last chance, granted a week’s time, making it clear that in case of non appearance of the appellant or his counsel and prosecute the matter, appropriate orders would be passed in the matter including disposal of the appeal for non prosecution. Inspite of that, even though non bailable warrant as long back has been returned unserved, neither the appellant nor his learned counsel appeared and evinced any interest to prosecute the matter further.
4. Though, normally, a criminal appeal would not be dismissed for non-prosecution, but the present appeal is not an appeal against the judgment of conviction filed by the accused, but as observed above, it is against a judgment of acquittal filed by the complainant challenging the order of acquittal of the respondent/accused for the offence punishable under Section 138 of the NI Act.
5. Therefore, when the appellant, despite granting sufficient adjournments and opportunities, has constantly remained absent and is not evincing any interest in prosecuting the matter, this Court is constrained to dismiss the appeal for non prosecution.
Accordingly, the appeal stands dismissed for non- prosecution.
BMV* Sd/- JUDGE