IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 16TH DAY OF JULY, 2019 BEFORE:
THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ CRIMINAL APPEAL NO.1150 OF 2016 BETWEEN SRI. T.L.CHANDRAPPA, S/O. LATE LAKSHMAIAH, AGED ABOUT 48 YEARS, RESIDING AT “VANI PRINTERS”, BEHIND K.E.B. OFFICE, HOSAKOTE TALUK, BANGALORE RURAL DISTRICT, PIN CODE-562 114. ... APPELLANT [BY SRI. B.R.PRABHULINGA MURTHY, ADVOCATE] AND SRI. H.J.KRISHNAPPA, S/O. LATE JATTAPPA, AGED ABOUT 57 YEARS, RESIDING AT CHIKKA HULLUR VILLAGE, KASBA HOBALI, HOSAKOTE TALUK, BANGALORE RURAL DISTRICT, PIN CODE-562 114. ... RESPONDENT [BY SRI. M.NARAYANA REDDY, ADVOCATE] * * * THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378 (4) OF CR.P.C. PRAYING TO SET ASIDE THE ORDER DATED 13.01.2016 PASSED BY THE CIVIL JUDGE AND JMFC., HOSAKOTE, BENGALURU RURAL DISTRICT IN C.C. NO.152/2014 - ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCES P/U/S 138 OF N.I. ACT.
THIS CRIMINAL APPEAL COMING ON FOR ADMISSION, THIS DAY THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Heard the learned counsel appearing for the appellant and the learned counsel appearing for the respondent.
2. This appeal is preferred by the complainant in C.C. No.152/2014 on the file of the Court of Principal Civil Judge and JMFC., Hosakote, challenging the Order dated 13.01.2016, whereby the learned Magistrate dismissed the complaint for non-prosecution.
3. The appellant filed a private complaint under Section 200 of Cr.P.C. r/w. Section 138 of the Negotiable Instruments Act [hereinafter referred to as ‘N.I. Act’ for short] against the respondent herein alleging that the accused, towards discharge of his liability, issued a post- dated cheque bearing No.0001349 dated 21.06.2013 for a sum of Rs.8,00,000/- drawn on Vijaya Bank, Hosakote Branch and when the said cheque was presented for encashment to his banker, Catholic Syrian Bank Limited, Hosakote Branch on 24.06.2014, it was returned with an endorsement ‘no such account’. Further that in spite of issuance of notice and the notice being duly served, the respondent failed to make any payment.
4. The learned Magistrate by an Order dated 22.01.2014 was pleased to register a case and issued summons to the accused. In pursuance of the same, the accused appeared before the trial Court and he was released on bail.
5. The learned Magistrate by an Order dated 13.01.2016 dismissed the complaint for non-prosecution on the ground that the complainant failed to tender himself for cross-examination though sufficient opportunity was given to him. Against the said order, the present appeal has been filed.
6. The learned counsel appearing for the appellant/complainant submits that the complainant was examined as P.W.1 on 29.07.2015 and Exs.P1 to 10 were marked and thereafter, the matter was posted for cross-
examination of the complainant on 02.09.2015. On 02.09.2015, since the Presiding Officer was on leave the case was posted to 17.10.2015. The complainant was present on the said date. However, the case was kept by. The learned counsel for the complainant wanted to give no objection to the complainant to engage some other counsel. On the subsequent dates i.e., on 21.12.2015 and 13.01.2016, the complainant as well as the learned counsel appearing for the complainant was not present before the trial Court. Hence, the complaint came to be dismissed for non-prosecution.
The learned counsel appearing for the appellant/complainant submits that non-appearance before the trial Court is unintentional and for bona fide reasons. He submits that the complainant was under the impression that the case is being prosecuted by the learned Advocate. Hence, there was a communication gap and therefore, he submits that one more opportunity may be given to the complainant to prosecute the case. Accordingly, he seeks to allow the appeal.
The learned counsel appearing for the respondent on the other hand submits that the complainant has continuously remained absent before the trial Court and therefore, the trial Court has rightly dismissed the complaint and accordingly, seeks to dismiss the appeal.
7. According to the learned counsel for the appellant, non-appearance of the complainant or his counsel before the trial Court is un-intentional and for bona fide reasons and there was a communication gap between the complainant and the counsel.
8. The order-sheet goes to show that on presentation of the complaint, the learned Magistrate issued summons to the accused observing that the complainant has made out prima facie grounds to proceed against the accused. The complainant was examined as P.W.1 and Ex.P.1 to Ex.P.10 came to be marked on 29.07.2015. Case was adjourned to 02.09.2015 on which date the Presiding Officer was on leave and the case was adjourned to 17.10.2015. On the said date, the complainant and accused were present and it was kept by. But, the complainant remained absent, when the case was called at 1.45 p.m. and on subsequent dates i.e. on 02.12.2015 and 13.01.2016. Hence, the learned Magistrate dismissed the complaint for non-prosecution. Admittedly, the evidence of P.W.1 is over and the case is at the stage of cross-examination of P.W.1. Hence, I am of the view that one more opportunity may be given to the complainant to prosecute the complaint, by imposing cost Accordingly, I pass the following:
ORDER The appeal is allowed.
The Order dated 13.01.2016 passed in C.C. No.152/2014 on the file of the Principal Civil Judge and JMFC., Hosakote is hereby set aside. The complaint is restored to the file of the Court of Principal Civil Judge and JMFC., Hosakote and the learned Magistrate is directed to proceed in accordance with law.
The complainant shall pay a cost of Rs.3,000/- [Rupees Three Thousand Only] which shall be paid to the District Legal Services Authority, Bengaluru and a copy of the receipt shall be filed before the trial Court on or before 31.07.2019.
The complainant is directed to appear before the trial Court on 31.07.2019 without further notice.
Sd/- JUDGE.
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