IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY CRIMINAL APPEAL No.1394 OF 2018 BETWEEN:
Sri. Madusudhan U.V., Son of Vijay Kumar, Aged about 45 years, R/at Garagandoor village & Post, Via Madapur, S. Pet Taluk, Kodagu District. 571 251. ...Appellant (By Sri.K.P. Bhuvan, Advocate) AND:
Sri. V.T. Anthony, Son of Late Thomas, Aged about 50 years, R/at Garagandoor Village & Post, Via Madapur, S. pet Taluk, Kodagu District – 571 251. ...Respondent (By Miss. Tarjani Desai, Advocate for Sri. Purushothama M.S., Advocate) This Criminal Appeal is filed under Section 378(4) of Cr.P.C., praying to set aside the order dt.02.03.2018 passed by the Addl. Civil Judge and J.M.F.C. Madikeri in C.C.No.647/2016 on the file of Addl. Civil Judge & J.M.F.C., Madikeri in C.C.No.647/2016 and restore the complaint in C.C.No.647/2016 and restore the complaint in C.C.No.647/2016 on the file of the Additional Civil Judge and J.M.F.C., Madikeri on the original side to proceed further against the accused and allow this appeal.
This Appeal coming on for Admission, this day, the Court delivered the following:
JUDGMENT The present appellant, who was the complainant before the Additional Civil Judge and JMFC, Madikeri (hereinafter for brevity referred to as “trial Court”) in C.C.No.647/2016, has challenged the order dated 02.03.2018 of the trial Court, wherein it dismissed the complaint filed against the present respondent for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter for brevity referred to as “N.I. Act”), for non-prosecution.
2. Though the matter was listed for Admission, with consent of both side, it is taken up for final disposal.
3. A perusal of the certified copy of the order sheet of the trial Court, which is produced by the appellant would go to show that after the sworn statement, notice was ordered to the accused, who tendered his appearance in the trial Court and was enlarged on bail. Thereafter, on few dates of hearing, the accused remained absent, as such, non-bailable warrant also was issued against him. However, by his subsequent appearance by making an application under Section 70(2) of the Code of Criminal Procedure, 1973, he got that order of non-bailable warrant ordered against him recalled on 13.01.2012. It appears that on 30.12.2017 it was submitted to the trial Court that there was a chance of settlement of the matter. Accordingly, the matter was adjourned for reporting settlement, if any. However, the matter was not settled as reported on 10.02.2018. On the very next date of hearing, i.e., on 02.03.2018, though the learned counsel for the complainant was present in the first round, but the when the matter was taken up in two to three rounds, observing that there was no representation from the complainant’s side, the matter was dismissed for non- prosecution.
4. Looking at the circumstance of the case and more particularly the proceedings sheet maintained by the Court below, I am of the view that when the learned counsel for the complainant was present in the first round and merely because he was not present in the second and third round, the matter came to be dismissed for non-prosecution, that too till previous dates of hearing, the matter was awaiting any possibility of settlement between the parties. As such, the action of dismissal of the complaint for non-prosecution appears to be a hasty action on the part of the trial Court, which deserves to be set aside and the matter has to be restored on its original file in its original stage.
5. Further, the inconvenience caused to the accused also cannot be ignored. To compensate the same, imposing some cost payable to the accused appears to be just and reasonable.
6. Accordingly, the appeal stands allowed on a cost of `.3,000/- (Rupees Three Thousand only) payable by the complainant/appellant to the respondent/accused within two weeks from today.
Subject to payment of cost, order dated 02.03.2018 in C.C.No.647/2016 passed by the learned Additional Civil Judge and JMFC, Madikeri, is set aside and the criminal case i.e., C.C.No.647/2016 is restored on its file in its original stage.
Both the parties are directed to appear before the trial Court without anticipating any notice/summons afresh from it, on 18.03.2019, at 11.00 a.m..
Registry to transmit a copy of this order to the Court below, immediately.
Sd/- JUDGE BMC