IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF MARCH 2019 BEFORE THE HON'BLE MR. JUSTICE K.NATARAJAN CRIMINAL APPEAL NO.1159/2016 BETWEEN:
Sri N. Chandrashekara Bhat S/o. Subraya Bhat Aged about 54 years R/at 33/1, 1st Floor, 13th Cross, Margosa Road Malleshwaram Bangalore-560 003 …Appellant (By Sri.Hemanth Bharadwaj, Adv., for Sri.Trivikram S., Adv.) AND:
Sri.R.Balegowda S/o G.Rangaiah Aged about 49 years R/at No.26, BDA Jaladarshini Layout RMV II Stage, New BEL Layout Bangalore-560 094 ...Respondent (By Sri.Dharmapal, Adv.,) This Appeal is filed under Section 378 (4) Cr.P.C. praying to set aside the judgment and order dated:01.09.2015 passed by the VIII A.C.M.M. Bangalore in C.C.No.7950/2006- acquitting the respondent/ accused for the offence P/U/S 138 of N.I. Act and etc.
This Appeal coming on for admission this day, the Court made the following:
O R D E R This appeal is filed by the appellant-complainant under Section 378(4) of Cr.P.C. by challenging the order of dismissal of his compliant for Non-Prosecution dated 01.09.2015.
2. Heard the learned counsel for the appellant as well as the respondent.
3. The brief facts of the case of the appellant before the trial Court is that the complainant has previously filed a complaint before the Malleshwaram police and after the investigation, the police have filed the ‘B’ report. Challenging the same, filed a protest memo and led evidence and thereafter, the trial Court took cognizance of the offence punishable under Sections 342, 364, and 506 of IPC against the respondent. After securing the respondent – accused, the case was posted for recording the evidence before the charge. Accordingly, appellant himself examined as PW.1 and also examined PW.2 – wife the complainant and also marked almost 25 documents through his evidence. The evidence of both PWs.1 and 2 were deferred for further evidence. The order sheet shows that the appellant changed his advocate on 01.9.2015 and one Sri V.V.K. Advocate has filed Vakalath and sought time to adduce further evidence which came to be dismissed. Accordingly, the complaint also dismissed for non- prosecution and the respondent-accused were discharged.
4. The counsel for the appellant strenuously argued that even though the appellant led evidence and has filed the application for summoning the documents under Section 91 of Cr.P.C. which was also rejected. Subsequently, he has changed the advocate and sought time to adduce further evidence in respect of the evidence before the charge but the trial Court ought to have rejected the prayer and considered the evidence already available on record and to pass the order is illegal and erroneous. Hence, prayed for setting aside the same.
5. Per contra, learned counsel for the respondent strenuously contended that the case of pending before the learned Magistrate from the year 2002. Previously the case was dismissed by the Court for default and thereafter, a revision came to be filed before the Sessions Judge in Criminal Revision Petition No.601/2008. The same was allowed and the matter was remanded back. In spite of more than ten years also not led any evidence. Therefore, the trial Court rightly rejected the prayer and dismissed the case and there is no illegality committed by the trial Court in passing such order. Hence, prayed for dismissal of the case.
6. Upon hearing the arguments and upon perusing the order sheet, at the outset it has to be mentioned that there is no dispute in respect of the fact of the case regarding filing of the complaint by the appellant before the police and in turn, the police filed the ‘B’ final report and it was challenged by the appellant by filing the protest memo. Subsequently, the case came to be dismissed for Non-Prosecutor and later as per the direction of the Sessions Court, the complaint came to be restored. Further, after taking cognizance, again the matter was posted for recording the evidence before the charge. At that time, the appellant examined himself as PW.1 and his wife as PW.2 and marked 25 documents and it is available on record. On 01.09.2015, when the appellant through a new advocate sought for time for leading further evidence of the appellant, the trial Court dismissed the case for Non-Prosecution. In my opinion, dismissing the entire case is illegal since the appellant already led evidence of two witnesses and got marked 25 documents. But without considering the evidence already available on record, dismissing the case itself for non- prosecution is illegal and the trial Court committed error. The trial Court ought to have given findings on the evidence of PWs. 1 & 2 & 25 documents. Therefore, without expressing any opinion on the merits of the case, as arguments addressed by the counsel for the appellant, the appeal deserves to be allowed.
7. Accordingly, appeal is allowed. The order of dismissal passed by the trial Court in C.C. No.7950/2006 dated 01.09.2015 is hereby set aside. Case is restored to the original stage. The trial Court is directed to proceed with the case by giving one more opportunity to the appellant and also to the respondent. Both the parties are directed to co-operate with the Court for speedy disposal without seeking unnecessary adjournments. Send the L.C.Rs. back.
SD/-
JUDGE BS