IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF JULY, 2019 BEFORE THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ CRIMINAL APPEAL NO.1617/2017 Between:
Sri Chandrashekar. K, S/o. late Kalegowda, Aged about 53 years, R/at Keelara village and Post, Keragodu Hobli, Mandya Taluk, Mandya District – 571 401. … Appellant (By Sri Ananda. K, Advocate) And:
Sri Vishweshwaraiah, S/o late C. Basavaiah, Major, R/at Vevukal village, Dudda Hobli, Mandya Taluk, Mandya District – 571 401. …Respondent This Criminal Appeal is filed under Section 378(4) of Cr.P.C. praying to set aside the order dated 10.08.2016 passed by the I Additional Senior Civil Judge and C.J.M, Mandya in C.C. No.46/2016 acquitting the respondent/accused for the offence P/U/S 138 of N.I. Act.
This Criminal Appeal coming on for Orders this day, the Court delivered the following:
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J U D G M E N T This appeal is preferred by the complainant seeking to set aside the order dated 10.08.2016 passed in C.C No.46/2016 on the file of the I Additional Senior Civil Judge and C.J.M., Mandya, wherein the complaint was dismissed.
2. Though the respondent is served, he is unrepresented.
3. The appellant herein filed a private complaint against the respondent alleging an offence punishable under section 138 of Negotiable Instruments Act, 1881 stating that in pursuance of the loan borrowed by the accused from the complainant, a Cheque bearing No.002838 dated 10.10.2014 drawn on Axis Bank, Mandya Branch, Bandigowda layout, Mandya was issued and on presentation of the said cheque for encashment, the same was not honoured and returned with an endorsement “insufficiency of funds” on 13.10.2014.
4. The learned Magistrate by order dated 19.02.2016 was pleased to register the case and issued summons to the accused and simultaneously through RPAD, if PF and RPAD charges are furnished. In spite of the same, the complainant failed to furnish the RPAD and though the case was posted on 18.04.2016, 28.06.2016 and 10.08.2016, needful was not done. On 10.08.2016, the complainant was absent. Hence, the learned Magistrate proceeded to dismiss the complaint.
5. The learned counsel appearing for the petitioner-complainant submitted that he may be given one more opportunity to take steps against the respondent. He submits that the appellant is an agriculturist and he was not aware of the Court proceedings and due to his agricultural work he was not able to approach his counsel to take steps against the respondent immediately. It is further submitted that the complainant will be diligent hereafter and he will take necessary steps against the respondent, if an opportunity is given to him.
6. Considering the facts and circumstances of the case and also the submission made by the learned counsel appearing for the appellant-complainant, I deem it appropriate to give one more opportunity to the complainant to prosecute his complaint, to meet the ends of justice. Accordingly, I pass the following order:
ORDER Appeal is allowed.
The order dated 10.08.2016 passed in C.C. No.46/2016 on the file of the I Additional senior Civil Judge and C.J.M., Mandya, is hereby set aside.
The complaint shall be restored to file of the Court of the I Additional Senior Civil Judge and C.J.M., Mandya. The learned Magistrate is directed to proceed in accordance with law.
The complainant shall appear before the trial Court on 31.07.2019 without further notice and shall take necessary steps.
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JUDGE nms/HB