Sri Mustafa V M vs Sri A C Mohammed Harif
2021 Latest Caselaw 5413 Kant

                            1

     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 03RD DAY OF DECEMBER, 2021

                        BEFORE

       THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ

            CRIMINAL APPEAL NO. 257 OF 2018


BETWEEN:

SRI. MUSTAFA V.M,
SON OF ABOOBACER HAJI,
AGED ABOUT 47 YEARS,
RESIDING AT V. M. HOSUE,
POST CHELAVOOR,
CALICUT, KERALA - 673571.

REPRESENTED BY HIS GPA HOLDER,
MR. S. KISHORE,
SON OF M.SURESH,
AGED ABOUT 32 YEARS,
RESIDING AT NO. 52/1,
1ST CROSS,
CLY LAYOUT, HOSUR MAIN ROAD
BANGALORE - 560029.
                                          ... APPELLANT
(BY SRI.RAGHU BABU.N, ADVOCATE)

AND:

1.   SRI A.C. MOHAMMED HARIF,
     SON OF MOHAMMED KUTTY,
     AGED ABOUT 48 YEARS,
     RESIDING AT HAKEEMAS,
     SADANANDA PAI ROAD,
     CHIRAKKARA THALASEERY,
                              2

     KANNOOR DISTRICT,
     KERALA - 670101

     ALSO OFFICE AT
     ROYAL COMFORT PARK,
     AT HOSUR MAIN ROAD,
     MADIWALA, BANGALORE - 560087

2.   MONARCH INTERNATIONAL PREMIUM LODGING,
     AT NO 48, 10TH MAIN,
     28TH CROSS,
     4TH BLOCK, JAYANAGARA,
     OPP-BMTC BUS STAND,
     BANGALORE
                                 ...RESPONDENTS
(SRI.K.SUNDARAM, ADVOCATE)

     THIS CRIMINAL APPEAL IS FILED U/S.378(4) CR.P.C.,
PRAYING TO SET ASIDE THE JUDGMENT DATED 09.01.2018
PASSED    BY   THE   XIX  A.C.M.M., BANGALORE      IN
C.C.NO.27440/2016-         ACQUITTING            THE
RESPONDENT/ACCUSED FOR THE OFFENCE P/U/S 138 OF N.I.
ACT.

     THIS CRIMINAL APPEAL IS COMING ON FOR ADMISSION
THIS DAY, THE COURT DELIVERED THE FOLLOWING;

                       JUDGMENT

The appellant/complainant has preferred this appeal

praying to set aside the order dated 09.01.2018 passed by the

Court of XIX Additional Chief Metropolitan Magistrate at

Bangalore city in C.C.No.27440/2016, wherein the complaint

was dismissed for non-prosecution and the accused was

acquitted of the offence punishable under Section 138 of

Negotiable Instruments Act.

2. Complaint was filed on 17.10.2016 against the

respondent in respect of dishonor of a cheque issued by him

for a sum of Rs.12,00,000/-. Accused was summoned to

appear before the trial Court. Subsequently, since the

complainant remained absent continuously, the trial Court,

vide order dated 09.01.2018 dismissed the complaint for non-

prosecution.

3. The trial Court had no option but to dismiss the

complaint in view of non-cooperation by the complainant. It

is seen that on 03.01.2018 the case was adjourned at the

request of the learned counsel for the complainant, by

imposing cost of Rs.300/- and the said cost was also not

paid.

4. The learned counsel for the complainant submits

that the amount involved is huge. The complainant has good

case on merit. He submits that if the complaint is not

restored, the complainant will be put to immense hardship

and the same will lead to miscarriage of justice. He submits

that, henceforth, the complainant will diligently appear before

the trial Court.

5. Since the complaint has been dismissed for non-

prosecution and considering the submission of the learned

counsel for the appellant, I deem it appropriate to give an

opportunity to the complainant in the interest of justice, to

prosecute his complaint, however, by imposing cost. Hence,

the following;

ORDER

Appeal is allowed.

The order dated 09.01.2018 passed by the Court of

XIX Additional Chief Metropolitan Magistrate at Bangalore

City in C.C.No.27440/2016 is hereby set aside.

The complaint shall be restored to its original file and

the learned Magistrate is directed to proceed with the case in

accordance with law.

It is made clear that no further indulgence will be

shown to the complainant.

He shall pay a cost of Rs.5,000/- to the respondent by

next date of hearing before the trial Court.

Registry shall send back the trial Court records.

Sd/-

JUDGE BH