IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF DECEMBER, 2019 BEFORE THE HON' BLE MR.JUSTICE R. DEVDAS CRIMINAL APPEAL NO.255 OF 2018 BETWEEN SRI CHIDGANA SWAMIJI S/O LATE BASAVARAJASWAMIGALU AGED ABOUT 65 YEARS GANJAMUTT PRESIDENT OF LITERARY EDUCATION ASSOCIATION NO.5 & 6, MAMULPET AVENUE ROAD CROSS BENGALURU-560053.
(BY SRI SIDDESWARA.N.K, ADVOCATE) AND SRI MANJUNATH @ MANJUNATH MURTHY S/O NOT KNOWN TO THE COMPLAINANT AGED ABOUT 50 YEARS APARTMENT A-5, 2ND FLOOR SHANTHI ENCLAVE-374, COMPLEX ROAD RAJARAJESHWARI NAGAR BENGALURU-560098.
(RESPONDENT SERVED BUT UNREPRESENTED) ...APPELLANT …RESPONDENT THIS CRIMINAL APPEAL IS FILED U/S 378(4) CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT DATED 21.03.2016 PASSED BY THE XXII ACMM, BENGALURU IN C.C.NO.18049/2015 AND RESTORE C.C.NO.18049/2015- ACQUITING 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:
JUDGMENT R. DEVDAS J., (ORAL):
This appeal is filed under Section 378 (4) of the Code of Criminal Code assailing the order dated 21.03.2016 by which the trial Court has dismissed the Private complaint on the ground of non-prosecution.
2. The learned counsel for the appellant draws attention of this Court to Annexure-C, which is a copy of the application that was filed by the appellant-complainant before the trial Court on 21.03.2016 i.e., the day when the Private complaint was dismissed. It is submitted by the learned counsel that an application was filed under Section 256 of Cr.P.C. seeking dispensation of the presence of the complainant since the complainant was required to be in Mysuru in connection with a death ceremony of his relative.
3. The learned counsel submits that in spite of such an application being made, the trial Court not only rejected the application but also proceeded to dismiss the complaint for non-prosecution and for default.
4. Though the notice is served on the respondent, the respondent has remained absent.
5. Having heard the learned counsel for the appellant and on perusing the appeal memo and the order sheet of the trial Court which is produced at Annexure-D, this Court is of the opinion that the appellant-complainant deserves that his complaint be considered on merits. However, this Court is also of the opinion that the same requires to be allowed on imposition of cost. Accordingly, the criminal appeal is allowed.
The impugned order dated 21.03.2016 in C.C.No.18049/2015 arising out of P.C.R.No.9696/2015 on the file of XXII Additional Chief Metropolitan Magistrate Court, Bengaluru is hereby set aside.
The appellant-complainant is hereby directed to pay cost of Rs.2,000/- to the respondent before the trial Court and the trial Court is hereby directed to consider the matter on merits.
It is ordered accordingly.
Sd/- JUDGE ssb