IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF APRIL, 2019 BEFORE THE HON'BLE MR. JUSTICE K. NATARAJAN CRIMINAL APPEAL NO.482 OF 2018 BETWEEN:
SRI TRIMURTHY S/O. PUTTANARAYANAPPA, AGED ABOUT 40 YEARS, RESIDING AT NO.561, VINAYAKA LAYOUT, MEENAKSHINAGARA, KAMAKSHIPALYA, BENGALURU.
(BY SRI RAJANNA, ADV.) AND:
... APPELLANT SRI RAMAKRISHNAPPA FATHER NAME NOT KNOWN, AGED ABOUT 48 YEARS, MUNESHWARA PROVISION STORES, NO.620/84, NARAYANASWAMY BUILDING, MUDDANAPALYA MAIN ROAD, VISHWANEEDAM POST, ANAJANAGARA, BENGALURU.
... RESPONDENT [BY SRI H.S. RAMAMURTHY, ADV. (ABSENT)] THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4) OF THE CR.P.C PRAYING TO SET ASIDE THE JUDGMENT DATED 18-1-2018 PASSED BY THE CHIEF JUDICIAL MAGISTRATE, BANGALORE RURAL DISTRICT, BANGALORE, IN C.C. NO.4012 OF 2015 ACQUITTING THE RESPONDENT-ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 138 OF THE N.I. ACT.
THIS CRIMINAL APPEAL IS COMING ON FOR ORDERS, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T Heard the learned counsel for the appellant- complainant. The learned counsel for the respondent- accused is absent.
2. This appeal is filed by the appellant against the order dated 18-1-2018 passed by the Chief Judicial Magistrate, Bangalore Rural District, Bangalore, in Criminal Case No.4012 of 2015 for having dismissed the complaint under Section 256 of the Code of Criminal Procedure, 1973 (for short, ‘the Cr.P.C.’).
3. Learned counsel for the appellant contended that the appellant has taken the steps regularly before the trial Court, but the Police have not executed the warrant and not able to secure the presence of the respondent before the trial Court. Only one day, i.e. on 18-1-2018, the appellant was absent and Non-Bailable Warrant re-issued to the respondent was not returned, but the trial Court dismissed the complaint, which is not correct. Thereby, the trial Court committed an error in dismissing the complaint. Hence, he prayed for setting aside the same.
4. Perused the order-sheet of the trial Court produced by the learned counsel for the appellant.
5. The factual matrix of the case of the appellant- complainant before the trial Court is that, he has filed a complaint under Section 200 of the Cr.P.C. against the respondent-accused for the offence punishable under Section 138 of the Negotiable Instruments Act on the ground that the respondent-accused gave cheque for an amount of Rs.4,00,000/-, which came to be dishonoured.
A notice came to be issued and reply by the respondent was untenable. Hence, the appellant filed a complaint. After taking cognizance, the trial Court issued summons to the respondent. The respondent received the summons, but he did not appear before the trial Court. The trial Court issued Non-Bailable Warrant against the respondent, but the Police have not executed the warrant till dismissal of the complaint for non-prosecution. Hence, he prayed for setting aside the order of dismissal.
6. On perusal of the order-sheet of the trial Court, which shows a Non-Bailable Warrant has been issued as against the accused was returned as on the date of the impugned order challenged herein. As per Section 70 of the Cr.P.C., once a Non-Bailable Warrant has been issued and until it is cancelled or recalled, it will be in force. But the trial Court has not mentioned anything about the return of Non-Bailable Warrant, which ought to have been executed by the Police. There is no reference or endorsement made in the order-sheet in respect of executing or non-executing of warrant. Such being the case, the trial Court ought to have proceeded in securing the presence of the accused by issuing Non-Bailable Warrant through the Higher Officer of the Police either the Deputy Superintendent of Police or the Superintendent of Police, but without passing any such further order, the trial Court has jumped into conclusion and dismissed the complaint only when the complainant was absent on one occasion is not correct. The trial Court ought to have given adjournment for the purpose of taking further steps by the complainant, but it has stated that the complainant was absent and holding that the complainant is not interested in proceedings with the case is not correct, since the order-sheet shows that he has taken steps continuously as and when ordered by the trial Court. Apart from that, there is no reason assigned in respect of non-action of the Police as per the order passed by the trial Court and issuance of Non-Bailable Warrant. Therefore, merely the complainant was absent for only one day, the trial Court ought not to have rejected the complaint. Further, the presence of the complainant was also not required on the said date. Therefore, the order of dismissal of the complaint requires to be set-aside.
Accordingly, the appeal is allowed. The order of dismissal of the complaint is hereby set aside. The matter is remanded back to the trial Court to secure the presence of the respondent-accused in accordance with law. The appellant-complainant is directed to pay the process and appear before the trial Court, without any absence.
Sd/- JUDGE kvk