IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL APPEAL NO.28/2019 BETWEEN:
Umakantha, S/o. Muniyappa, Aged about 51 years, R/at No.50, 4th Cross, Ganesha Block, Mahalakshmi Layout, Bengaluru – 560 086.
(By Sri.Ramachandra N, Advocate) AND:
Smt. Swapna Gujjar, W/o. Mahadev Gujjar, Aged about 39 years, R/at No.351, “Sandhya”, 29th Cross, Judicial Layout, GKVK Post, Yelahanka New Town, Bengaluru – 560 065.
... Appellant ... Respondent (By Sri. J. R. Srinivasa, Advocate - Absent) This criminal appeal is filed u/s. 378(4) of Cr.P.C., praying to set aside the judgment and order of acquittal dated 15.12.2018 passed by the XIX Additional C.M.M., Bengaluru in C.C. No.16860/2017 – acquitting the respondent/accused for the offence p/u/s 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 The present appeal has been preferred by the complainant challenging the order passed by the Court of XIX A.C.M.M. at Bangalore City in C.C. No.16860/2017 dated 15.12.2018 dismissing the complaint for non-prosecution and acquitting the accused.
2. I have heard the learned counsel for the appellant. Learned counsel for the respondent remained absent. There is no representation.
3. Though the matter is listed for admission, with the consent of learned counsel for the appellant, the same is taken up for final disposal.
4. The main grounds urged by the learned counsel for the appellant are that the impugned order is highly contrary to well established the proposition of law. The learned trial Judge without following the principles of natural justice and without giving full opportunity to the complainant has erroneously dismissed the complaint and acquitted the accused. It is further submitted that on 29.11.2018, the case was listed and in the absence of parties, the case has been referred to Lok-Adalath. On 08.12.2018, the case was called before the Lok-Adalath, the complainant and the accused were absent and the matter has not been settled. Hence, the case was asked to be called before the Court on 15.12.2018. Neither the learned counsel nor the complainant and the accused did not know the posting of the case on 15.12.2018. When the matter has been referred back to the Court from Lok-Adalath, in the absence of parties, without giving any opportunity, the Court below has dismissed the complaint. On these grounds, he prayed to allow the appeal and to set aside the impugned order.
5. I have carefully and cautiously gone through the certified copy of the order. It indicates that the complaint was filed under Section 138 of the Negotiable Instruments Act, 1881 and the Court by order dated 23.06.2017 took cognizance and issued the process against the accused. Subsequently, the accused appeared and he was released on bail. Thereafter, the plea of the accused was recorded and accused filed an application under Section 145(2) of Cr.P.C., to recall PW.1 for cross-examination and thereafter, the case was posted for cross-examination of PW.1. Several adjournments were granted by the Court but on 29.11.2018, the matter was referred to Lok-Adalath by issuance of notice to both the parties and the matter was called before the Lok-Adalath on 08.12.2018 and on that day, both the parties were not present. Hence, the case was referred back to the Court with a direction to call the case on 15.12.2018. On 15.12.2018, the Court passed the impugned order. On going through the records, the order dated 15.12.2018 indicates that notifying of the date on 15.12.2018, was not intimated to the parties. Even, whether the notice has been served to the parties to appear before the Lok-Adalath and what happened to that notice has also not been mentioned in the ordersheet. When the case has been posted for cross-examination of PW.1, whether with the consent of the parties, the matter has been referred to Lok-Adalath or not is also not forthcoming. In the absence of these materials and when the case has been referred back from Lok-Adalath to the Court by notifying the date and when the date is not intimated to the parties, on that day, when the complainant and the accused are absent, recording the same, the Court below has dismissed the complaint for non-prosecution and accused was acquitted. That itself goes to show that erroneously the complaint has been dismissed without giving full opportunity to both the parties.
6. Keeping in view of the above said facts and circumstance of the case, in order to give an opportunity to both the parties, impugned order passed by the Court of XIX A.C.M.M. at Bangalore City in C.C. No.16860/2017 dated 15.12.2018 is set aside and the said case has been restored to its original file and the Court below is directed to give full opportunity to both the parties and dispose of the case in accordance with law. Both the parties are directed to appear before the Court below without further notice on 18.11.2019.
With the above observations, the appeal is disposed off.
Sd/- JUDGE VBS