IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MR. JUSTICE H.P. SANDESH CRIMINAL APPEAL No.154/2017 BETWEEN:
MRS. PUTTAMANI, SON OF MANCHAIAH, AGED ABOUT 49 YEARS, R/AT NO.2193/1, 2ND MAIN, 4TH CROSS, ASHOKAPURAM, MYSURU-570 008.
REPRESENTED BY HER GPA HOLDER MR. MANCHAIAH. … APPELLANT (BY SRI ABDUL ANSAR, ADVOCATE FOR SRI ABUBACKER SHAFI, ADVOCATE) AND:
MR. NAGENDRA, SON OF SIDDAIAH, AGED ABOUT 45 YEARS, WORKING AS POLITICAL SCIENCE LECTURER, SRI. CHANNAKESAVASWAMY UNIVERSITY COLLEGE, SALIGRAMA, K.R. NAGARA TALUK, MYSURU DISTRICT-570 001. ... RESPONDENT (BY SRI A.M. VIJAY, ADVOCATE) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4) OF CR.P.C. PRAYING TO SET ASIDE THE ORDER DATED 9.12.2015 PASSED BY THE ADDITIONAL CIVIL JUDGE AND J.M.F.C., K.R. NAGAR IN PCR.NO.105/2015 – 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:
J U D G M E N T Though the matter is listed for admission, with the consent of both the parties, it is taken up for final disposal.
Brief facts of the case:
2. The appellant/complainant had filed a complainant against the respondent/accused under Section 200 of Code of Criminal Procedure for the offence punishable under Section 138 of the Negotiable Instruments Act. The complaint was dismissed for non-prosecution and hence the present appeal is filed before this Court.
3. The grounds urged in the appeal is that the Court below hurriedly went on with the case and dismissed the complaint for non-prosecution without justifying the absence of the complainant. The non-attendance of the complainant was due to the reason, that he was not keeping well. The reason for non appearance is bonafide and not intentional.
4. The learned counsel for the appellant would submit that the Court below did not give any opportunity and hurriedly dismissed the complaint.
5. The learned counsel for the respondent would contend that except filing the complaint, the complainant did not appear before the Court below. When the counsel also did not appear, the Court below rightly dismissed the complaint and there are no grounds to set aside the order.
6. Having heard the arguments of both the counsel and on perusal of the order sheet filed along with the appeal memo, it is evident that the complaint was filed on 12.2.2015 and the matter was listed for hearing on 3.3.2015. On the very first date of hearing, the complainant was absent and there was no representation. However, the Court below adjourned the matter to 10.4.2015. Again, the complainant was absent. On the next date of hearing, i.e., on 8.5.2015, the Presiding Officer was on leave and subsequently on four dates of hearing the counsel sought time. Thereafter, on 13.11.2015 and 9.12.2015, both the counsel and the complainant did not appear before the Court below. Hence, the Court below dismissed the complaint for non- prosecution.
7. The very contention of the learned counsel for the appellant that the Court below hurriedly passed the order cannot be accepted. Inspite of granting sufficient opportunity, both the complainant and the counsel did not appear before the Court below. On perusal of the order sheet, it is evident that there was no progress from the side of the complainant for about almost nine months. Even though the complainant has not appeared before the Court, he is pointing towards the lower Court. However, in the ends of justice, an opportunity has to be given to the complainant. Hence, the impugned order requires to be set aside subject to payment of cost.
8. In view of the discussions made above, I pass the following:
ORDER (i) The appeal is allowed.
(ii) The impugned order dated 9.12.2015 passed by the Additional Civil Judge and JMFC, K.R.Nagar in P.C.R.No.105/2015, is set aside.
(iii) The Court below is directed to restore the complaint subject to payment of cost of Rs.2,000/-.
Sd/- JUDGE MD