IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF DECEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A.PATIL CRIMINAL APPEAL NO.345 OF 2019 BETWEEN:
Mohan Kumar V.R. S/o Ramesha Aged about 28 years R/at Valagerehalli Village Kasaba Hobli, Maddur Taluk Mandya District-573 402. …Appellant (By Sri Lethif.B, Advocate) AND:
Sridhar M. S/o Moyigaiah Aged about 35 years KSRTC Bus Conductor R/at Opp: Government Hospital, Kesturu Village, Athaguru Hobli, Maddur Taluk, Mandya District-573 402. …Respondent (Respondent Served) This Criminal Appeal is filed under Section 378(4) of Cr.P.C. praying to set aside the judgment dated 07.11.2018 passed by the I Additional Civil Judge and JMFC, Maddur in C.C.No.1376/2016 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 delivered the following:-
JUDGMENT This appeal has been preferred by the appellant- complainant challenging the order dated 7.11.2018 in dismissing the complaint for non-prosecution by the Principal Civil Judge and JMFC, Maddur.
2. I have heard the learned counsel for the appellant.
The respondent though served with notice, remained absent. There is no representation.
3. Though this case is listed for hearing on interlocutory application, with the consent of the learned counsel for the appellant, it is taken up for disposal.
4. The facts leading to the case are that, appellant- complainant and respondent-accused were friends. The appellant advanced a sum of Rs.1,80,000/- for the necessity of the respondent-accused, on his request, on 18.12.2015. The respondent agreed to repay the said amount within five months, but he did not pay and has issued a cheque bearing No.150825 drawn on State Bank of India dated 26.5.2016. When the said cheque was presented by the complainant on 27.5.2016 the same was returned with an endorsement ‘insufficient funds’ on 31.5.2016. When the complainant approached the respondent for repayment he refused and as such, a legal notice was got issued on 3.6.2016 and the same was served on 8.6.2016. No reply was given and the amount was not paid by the respondent. As such, appellant filed the complaint under Section 138 of the Negotiable Instruments Act. The learned Magistrate took cognizance of the offence and issued summons. Respondent entered his appearance on 17.12.2016 and the matter was posted for cross-examination of P.W.1. On 7.11.2018 since nobody appeared for the appellant, the complaint came to be dismissed for non-prosecution.
5. It is the contention of the learned counsel for the appellant that the impugned order is not sustainable in law and facts. The appellant was suffering from ailment and as such, on the date fixed, he did not appear. Already examination-in-chief has been completed and the case is posted for cross-examination, at that stage, without giving opportunity to the complainant hastily, the complaint has been dismissed, which is not in accordance with law. On these grounds he prayed to allow the appeal and to set aside the impugned order.
6. I have carefully and cautiously gone through the submissions made by the learned counsel for the appellant.
7. As could be seen from the order dated 7.11.2018, the case was posted for cross-examination of the appellant- complainant. Earlier to that date, matter has been referred to Lok Adalath and since the matter has not been settled, case was posted for hearing before the regular Court. Even the order sheet produced indicates that on some occasion the accused was absent and on the other occasion, complainant was absent and exemptions have been sought and it has been granted. The order sheet dated 7.11.2018 indicates that accused submitted before the Court that P.W.1 is repeatedly absent and not appeared for cross- examination. It is also submitted that accused has already paid the amount. The Court below has observed that C.W.1 is continuously absent to the Court and there are no good grounds to adjourn the case for cross-examination of P.W.1 and accordingly, dismissed the complaint.
8. When the respondent-accused has submitted that amount has been paid, the Court below at least should have waited and secured the presence of appellant- complainant and matter could have been settled by securing a Memo for having paid the amount. Without adjudicating the matter in accordance with law, hurriedly, the complaint has been dismissed without giving any opportunity to the complainant. The order sheet also discloses the fact that the submission of the accused that the amount has been paid by him has been taken as a gospel truth by the Court below and on that basis also, the complaint might have been dismissed, which is also incorrect.
9. Taking into consideration the above facts and circumstances, I am of the considered view that in order to give an opportunity to the appellant-complainant if the impugned order is set aside and the matter is remitted to the Court below with a direction to proceed in accordance with law, it would meet the ends of justice.
10. Accordingly, appeal is allowed. The order dated 7.11.2018 passed by the Principal Civil Judge and JMFC, Maddur in C.C.No.1376/2016 is set aside and the matter is remitted to the Court below to dispose of the same in accordance with law, expeditiously, within a period of eight months from the date of receipt of this order.
The appellant-complainant shall appear before the Court below, without further notice, on 03.1.2020.
Sd/- JUDGE bkp