IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF JANUARY, 2019 BEFORE THE HON’BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY CRIMINAL APPEAL No.1867 OF 2016 BETWEEN:
Smt. Uma devi, W/o. Late N.Venkataramanappa, Aged about 64 years, R/a No.8/2, S.P.Road, Thigalarpet Cross, Bengaluru-560002.
Represented by the GPA holder of the Complainant M.Ravishankar. ...Appellant (By Sri. Bharath Kumar V, Advocate) AND:
Smt. V.Indira W/o. H. Hemaraj, Aged about 50 years, No.312, 6th Cross, Weavers colony, Gottigere post, Bengaluru-560083. ...Respondent This Criminal Appeal is filed under Section 378(4) of Cr.P.C praying to set aside the Judgment and order dated:06.10.2016, passed by the XVIII ACMM, Bengaluru, in C.C.No.27981/2007 – acquitting the respondent/accused for the offence punishable under Section 138 of N.I.Act.
This Appeal coming on for Orders, this day, the Court made the following:
ORDER Called again in the afternoon in the third round. None appear in the matter. Learned counsel for the appellant absent.
2. The appeal is of the year 2016. Noticing the absence of learned counsel for the appellant on the previous dates of hearing, this Court on 10.10.2018 had made the following observations;
“None appear in the matter.
A perusal of the order sheet go to show that on several dates of hearing, there is no representation from the appellant’s side. The matter is of the year 2016, as such, before passing any further order on non-prosecution of the matter, an opportunity be given to the appellant.
Accordingly, Registry to issue emergent Court notice to the appellant returnable by 25.10.2018, calling for her appearance and for further proceeding in the matter.”
3. Thereafter, when the matter was taken up on 25.10.2018 on the said date also none appeared on behalf of the appellant. Awaiting the service of emergent Court notice upon the appellant, the matter was again adjourned.
4. Now the police report go to show that notice to the appellant has returned as unserved as the appellant is said to have sold the house in the address ten years ago and the present whereabouts is not known. In such a situation, where neither the learned counsel for the appellant is appearing and prosecuting the matter, nor the appellant could be able to be contacted and communicated, it has to be necessarily taken that the appellant is not interested in prosecuting the matter.
5. Though normally, a criminal appeal would not be dismissed for non prosecution, but, the present appeal is not the appeal against the judgment of conviction, but, it is against the judgment of acquittal of the respondent for the offence punishable under Section 138 of the Negotiable Instruments Act.
In such circumstances, when the Court has exhausted all the avenue to communicate the appellant to ensure the prosecution of the matter, but no response is received, hence, there is no point in holding this appeal which does not show any progress in the matter, as such, the appeal stands dismissed for non prosecution.
Sd/- JUDGE GH