IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF OCTOBER, 2017 BEFORE THE HON'BLE MR.JUSTICE BUDIHAL R.B.
CRIMINAL APPEAL No.968/2014 BETWEEN:
SRI K.NARAYAN NAYAK S/O LATE SUBBARAYA NAYAK, AGED ABOUT 72 YEARS, # G-1, NO.29, VAISHNOVI HOMES TEMPLE ROAD, 8TH CROSS, MALLESWARAM, BANGALORE-560003. ... APPELLANT (BY SRI RAMESH CHANDRA, ADV.) AND:
1. SMT.N.RANI SAMBASIVAN W/O SRI D.SAMBASIVAN 2. SRI D.SAMBASHIVAN S/O LATE N.DORAISWAMY MODALIAR 3. SMT.SHILPA D/O SRI D.SAMBASHIVAN, ALL ARE R/AT # 47, 7TH CROSS, HMT LAYOUT, (V.V. NAGAR) R.T. NAGAR, BANGALORE 560032 ...RESPONDENTS (BY SRI FRANCIS XAVIER, ADV. FOR R-1 & R-2; R-3 SERVED.) THIS CRL.A. FILED UNDER SECTION 378(4) CR.P.C. PRAYING TO SET ASIDE THE ORDER DATED 21.08.2014, PASSED BY THE 19TH ACMM, BANGALORE, IN C.C.No.16160/2012 – ACQUITTING THE RESPONDENT/ ACCUSED FOR THE OFFENCE P/U/S 138 OF N.I. ACT.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T Heard the arguments of learned counsel appearing for both the sides.
2. This is the appeal preferred by the appellant- complainant filed under Section 378 (4) of Cr.P.C, being aggrieved by the order dated 21.08.2014 passed by the XIX ACMM Court, Bengaluru in C.C.No.16160/2012.
3. Learned counsel appearing for the appellant- complainant made the submission that though notice was served on him, as the matter transferred from the file of the XIX ACMM Court to XIII ACMM Court, the complainant was not before the Court. Therefore, complaint came to be dismissed for default. Learned counsel submitted that there is no fault on the part of the complainant, because of the transfer of the case, he was not present before the Court. Hence, learned counsel submits to allow the appeal and remand the matter to the concerned trial Court for disposal on merits.
4. Per contra, learned counsel appearing for the respondents-accused made the submission that when the notice has been served, it is the duty of the complainant to be present before the Court. Hence, learned counsel submitted that it is the fault on the part of the complainant to remain absent before the Court. Hence, he submitted that there are no grounds made out by the appellant to allow the appeal. Hence, learned counsel submitted to dismiss the appeal.
5. I have perused the grounds urged in the appeal memorandum and the order passed by the Trial Court which is challenged in this appeal, so also perused the other documents produced by the appellant in support of his case. It is contended by the appellant herein that notice from the Court was already served on the complainant, it was his duty to present before the Court but he remained absent in spite of service of notice. But the reason assigned by the appellant is that as the matter was transferred from the file of XIX ACMM Court to the file of the XIII ACMM Court, the complainant remained absent before the Court. The appellant looking to the appeal grounds, made out a case to allow the appeal. Apart from that, even if the appeal is allowed and the matter is remanded to the trial Court for fresh disposal on merits, the respondents herein will not be put to any hardship and injury as he will be having an opportunity to contest the matter on merits. If the appeal is dismissed, appellant would be put to hardship and injury, but, however, as the respondents-accused appeared before this Court for the mistake of the appellant, they need to be compensated by awarding cost in the matter.
6. Accordingly, appeal is allowed. The order passed by the trial Court, which is challenged in this appeal is hereby set aside and the matter is remanded to the concerned trial Court to dispose of the matter on merits by giving an opportunity of hearing to both the parties.
7. The appellant has to pay cost of Rs.1,000/- to the respondents.
Since both the learned counsel representing the complainant and accused are present, parties are directed to appear before the concerned ACMM Court on 24.11.2017. It is not necessary for the concerned Court to issue notice again.
Sd/- JUDGE ln.