IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF AUGUST 2019 BEFORE THE HON’BLE MR. JUSTICE K.N.PHANEENDRA CRIMINAL APPEAL No.617/2014 BETWEEN PRAKASHCHANDRA SHETTY S/O.MONAPPA SHETTY, AGED ABOUT 53 YEARS, R/AT NO.27, 21ST CROSS, 8TH MAIN, I STAGE, CHBCS LAYOUT, BANGALORE-40. ... APPELLANT (BY SRI K.PRASAD HEGDE, ADVOCATE) AND B.N.RAJANNA, MAJOR, ASSISTANT EXECUTIVE ENGINEER, R/AT NO.1309, 13TH CROSS, MAHALKSHMIPURAM, BANGALORE-86. ... RESPONDENT (BY SRI T.R.RAMAKRISHNA, ADVOCATE -ABSENT) THIS CRL.A. IS FILED UNDER SECTION 378 OF CR.P.C PRAYING TO SET ASIDE THE ORDER DATED:21.4.2014 PASSED BY THE 20TH ADDL.CMM, BANGALORE IN C.C.NO.24770/2010 ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE P/U/S 138 OF N.I. ACT.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT Heard learned counsel for the appellant. Perused the records.
2. In the morning hours, the respondent’s counsel remained absent. Therefore, the Court passed over the matter. In spite of calling the case twice, the respondent’s counsel remained absent. Therefore, the following order is passed:
2. This appeal is preferred against the order passed by the XX ACMM, Bangalore in CC No.24770/10 dated 21.04.2014 in dismissing the complaint of the appellant for non-prosecution.
3. The facts of the case are that the appellant herein has filed a private complaint under Section 200 for the alleged offence under Section 138 of the N.I.Act, 1981. After service of summons, the accused appeared before the Court and was enlarged on bail.
On various occasions, the accused has remained absent and the Court has magnanimously entertained the exemption application as far as warranting recalling application and thereafter the plea was recorded and the case was posted for exemption of the complainant. The complainant was examined as PW1 on 12.09.2011 and thereafter on many occasions accused himself sought for time and he remained absent for many number of occasions and in that context, the cross-examination of PW1 was postponed on many occasions. It is mainly due to absence of the accused and sought time by the counsel for the accused the matter went on for cross-examination of PW1.
4. In the above said backdrop, the order sheet discloses that on 15.05.2013, both accused and PW1 were present and accused agreed to pay a sum of Rs.5 lakhs to the complainant within five months and both the counsel filed a joint memo and the case was posted for hearing on the joint memo on 21.10.2013. On 21.10.2013, the accused was absent and the complainant was present. The case was posted for balance payment of an amount on 08.11.2013 and on that day also, accused remained absent and the case was again posted for payment of balance amount on 18.11.2013. On 18.11.2013, accused was present and sought for time; the case was posted to 25.11.2013 for payment of balance amount; on 25.11.2013 accused was present; complainant was absent and counsel for the accused filed a memo and counsel for the complainant sought time to file objection to the memo by 18.12.2013; on 18.12.2013, complainant’s counsel filed objection to the memo and the case was posted to 10.01.2014 for hearing on memo; on 10.01.2014, accused was present; both complainant and his counsel were absent; the case was posted again for hearing on memo finally on 28.02.2014 by the then Judge (XIII ACMM, Bangalore) and as per Notification dated 01.02.2014 the case was transferred to XX ACMM, Bangalore. On 28.02.2014, accused and his counsel were present however the complainant and his counsel were absent and proxy counsel sought time finally to hear on memo and as prayed, the case was adjourned to 21.04.2014. On that day also, the accused and his counsel were present but the complainant and his counsel were absent. Therefore, the trial Court dismissed the complaint for non-prosecution acquitting the accused for the offence punishable under Section 138 of the N.I. Act on the ground of complainant being continuously remained absent.
5. It is necessary to mention here that the trial Court mainly relied upon the memo filed by the accused wherein it was stated that he has paid the entire amount under the cheque and because of the complainant’s absence, the memo appears to have been persuaded the trial Court and consequently, the trial Court dismissed the complaint for non-prosecution.
6. Section 256 of Cr.P.C., of course, empowers the Magistrate either to adjourn the hearing of the case to some other day or acquit the accused, if the complainant fails to appear before the Court on the date of hearing fixed. However, the said provision also provides, if the complainant is represented by a pleader or by the officer conducting the prosecution or where the Magistrate is of the opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case. This particular provision has not been properly understood by the learned Magistrate in his proper perspective particularly in so far as this case is concerned.
7. On careful perusal of the entire order sheet, the case was posted for hearing on the memo filed by the accused that he has discharged the entire amount. It is the accused who should have convinced the Magistrate. The Magistrate has not whispered anything in the order with regard to nonappearance of the accused though objection to the memo has already been filed by the complainant’s counsel. Apart from that, the conduct of the accused throughout goes to show that the accused has agreed to pay a sum of Rs.5 lakhs to the complainant within five months and thereafter on many occasions he has not made any payment but had sought for time. In this context, the complainant cannot be blamed for remaining absent on that particular date. The trial Court ought not to have acquitted the accused by dismissing the complaint. Therefore, the said order passed by the trial Court is devoid of merits and the same is liable to be interfered with. Hence, the following:
ORDER (i) The appeal is allowed. Consequently, the order dated 21.04.2014 dismissing the complaint for non-prosecution and acquitting the accused for the offence punishable under Section 138 of the N.I. Act by the XX ACMM, Bangalore, is hereby set aside.
(ii) The Criminal case in CC No.24770/2010 is restored on to the file of the XX ACMM, Bangalore, and the trial Court is directed to secure the accused and the complainant and dispose of the case in accordance with law on merits.
Sd/- JUDGE TL