IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28th DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A.PATIL CRIMINAL APPEAL No.595/2019 BETWEEN:
Sri H.N.Narasimha Murthy S/o Sri late Narayanappa Aged about 81 years Residing at No. G.Hosahalli Vijayapura Hobli, Devanahalli Taluk Bengaluru Rural District-562 110.
(By Sri Srikanth V. Kumbar, Advocate for Sri V.F.Kumbar, Advocate) AND:
1. Sri A.C.Venkatesh S/o Chikka Subbanna Aged about 56 years R/at Avathi Village Kasaba Hobli, Devanahalli Taluk, Bengaluru Rural District-562 110.
2. Sri H.G.Jayatheertha S/o H.R.Gopala Rao Aged about 67 years R/at G. Hosahalli, Vijayapura Hobli, Devanahalli Taluk Bengaluru Rural District-562 110.
…Appellant 3. Sri R.Anand S/o Rajashekaraiah Aged about 53 years R/at Avathi Village Kasaba Hobli, Devanahalli Taluk Bengaluru Rural District-562 110.
(By Smt. R.Shama, Advocate for R2; R1 and R3-Served) …Respondents This Criminal Appeal is filed under Section 378(4) of Cr.P.C praying to set aside the judgment and order dated 18.03.2019 passed by the Additional Civil Judge and JMFC, Devanahalli in C.C.No.26/2015 for the offences punishable under Sections 415, 416, 417, 420, 463, 465, 468, 469 and 471 r/w Section 34 of IPC, dismissing the complaint for default for Non-Adducing the evidence before charge, which virtually acquitting the respondent/accused Nos.1 to 3 and consequently be pleased to passed on order to remand the matter to the trial Court for fresh disposal.
This Criminal Appeal coming on for Admission this day, the Court delivered the following:-
JUDGMENT The present appeal has been preferred by the appellant-complainant challenging the order dated 18.3.2019 whereunder the complaint came to be dismissed for default.
2. I have heard the learned counsel appearing for the appellant and the learned counsel for respondent No.2.
Though notice has been served to respondents Nos.1 and 3, they have remained absent.
3. It is the contention of the learned counsel for the appellant that the impugned order is illegal, arbitrary, capricious and against the principles of natural justice. He further submitted that the trial Judge without giving full opportunity dismissed the case depriving the right and liberties of the complainant. It is his further submission that already the sworn statement has been recorded and cognizance has been taken and at that time the complainant remained absent and the complaint came to be dismissed, instead of dismissing, it could have given one more opportunity. It is his further submission that on the basis of the evidence the Court below should have framed the charge and proceeded with further proceedings. On these grounds he prayed to allow the appeal and to set aside the impugned order.
4. Per contra, the learned counsel for the respondent No.2 vehemently argued and submitted that inspite of giving sufficient opportunity, the appellant-complainant has drag on the case since 2011. Only with an intention to harass, the complainant has remained continuously absent for all the dates of hearing. By taking into consideration the said factual matrix, the trial Court has rightly dismissed the complaint for default. It is her further submission that the present appeal itself is not maintainable in view of the order passed by the Magistrate. An alternative remedy is available to the appellant- complainant to prefer the appeal before the learned District Judge. On these grounds she prayed to dismiss the appeal.
5. I have carefully and cautiously gone through the submissions made by the learned counsel appearing for the parties and perused the records.
6. The first and foremost contention taken up by the learned counsel for respondent No.2 is that, the alternative remedy is available against the order of dismissal, the appeal should have been filed before the learned District Judge, but as could be seen from Section 378 (4) of Cr.P.C. it reads as under:
Section 378(4): If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court.
7. On going through sub-clause(4) of Section 378 of Cr.P.C., by virtue of an order of acquittal if any appeal has been preferred to this Court by taking or granting a special leave, then under such circumstances the appeal can be entertained by this Court.
8. As could be seen from the order sheet it indicates that this Court by order dated 10.4.2019 allowed IA No.1/2019 and special leave has been granted. Under such circumstances, the contention of respondent No.2 does not survive for consideration.
9. As could be seen from the order sheet of the trial Court, the trial Court has taken the cognizance and thereafter the accused has appeared and case has been posted for evidence before charge and when the matter has been listed on 18.3.2019, the complainant remained absent and again the case was called at 3.05 p.m., at that time also complainant remained absent and taking note of the same the complaint was dismissed. The trial Court erred in following the procedure laid down in perusing the case on a private complaint. When the private complaint has been filed and cognizance has been taken as contemplated under law, then the evidence which has already been recorded, could have been treated as evidence and the case could have been posted for cross- examination of the complainant. There is no stage for recording evidence before charge.
10. Taking into consideration the above said facts and circumstances, I am of the considered opinion that in order to give an opportunity to the complainant and the other side, I feel that the impugned order requires to be set aside and the matter has to be remitted to the trial Court.
11. During the course of argument the learned counsel for respondent No.2 has contended that since 2011, respondent No.2 has coming to the Court and he has been harassed by the complainant.
12. Keeping in view the said fact, I am of the considered opinion that if an amount of Rs.2,000/- is imposed as cost, it is going to meet the ends of justice.
13. Keeping in view the above said facts and circumstances, the appeal is allowed and the order dated 18.3.2019 passed by Civil Judge and JMFC, Devanahalli in C.C.No.26/2015 is set aside and the matter is remitted to the Court below to give full opportunity to both the parties and thereafter proceed in accordance with law within the outer limit of eight months from the date of receipt of copy of this order.
Complainant and respondent-accused No.2 is directed to appear before the Court below on 12.12.2019 without further notice.
Registry is directed to send back the lower Court records.
Sd/- JUDGE *AP/-