Sri G N Muniraja vs Sri C M Narasimha Murthy
2021 Latest Caselaw 6873 Kant

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 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 20TH DAY OF DECEMBER, 2021

                       BEFORE:

      THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ

          CRIMINAL APPEAL NO.788 OF 2021

BETWEEN

SRI G.N.MUNIRAJA
S/O NARAYANAPPA
AGED ABOUT 51 YEARS
RESIDING AT
GAVIGANAHALLY VILLAGE
DODDAMARALI PANCHAYATH
AND POST
NANDI HOBLI
CHIKKABALAPURA TALUK
AND DISTRICT - 562 101
                                          ...   APPELLANT

[BY SRI.ANIL KUMAR C.D., ADVOCATE]

AND

SRI C.M.NARASIMHA MURTHY
S/O MUNIYAPPA
AGED ABOUT 45 YEARS
RESIDING AT CHADALAPURA VILLAGE
DODDAMARALI PANCHAYATH
AND POST
NANDI HOBLI
CHIKKABALAPURA TALUK
AND DISTRICT - 562 101
                                      ...    RESPONDENT

[BY SRI I.S.PRAMOD CHANDRA, ADVOCATE FOR
  SRI SANGAMESH R.B., ADVOCATE]
                        ***
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      THIS CRIMINAL APPEAL IS FILED UNDER SECTION
378(4) OF CR.P.C. PRAYING TO SET ASIDE THE ORDER
DATED 10.02.2021 PASSED BY THE LEARNED HON'BLE PRL.
CIVIL JUDGE AND JMFC AT CHIKKABALLAPURA AND RESTORE
THE PROCEEDINGS WHICH CAME TO BE DISMISSED FOR
DEFAULT     VIDE   ORDER    DATED    10.02.2021    IN
C.C.NO.918/2019 ON THE FILE OF THE HON'BLE PRL. CIVIL
JUDGE AND JMFC AT CHIKKABALLAPURA, ACQUITTING THE
ACUSED/RESPONDENTS FOR THE OFFENCE P/U/S 138 OF
THE N.I. ACT.

       THIS CRIMINAL APPEAL COMING ON FOR ADMISSION
THROUGH PHYSICAL HEARING/VIDEO CONFERENCE, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:


                          JUDGMENT

Heard both side.

2. This appeal is preferred against the order dated

10.02.2021 passed in C.C. No.918/2019 on the file of the

Court of Principal Civil Judge and JMFC at Chikkaballapura.

3. The appellant herein is the complainant before

the trial Court. The said complaint filed against

accused/respondent alleging an offence punishable under

Section 138 of N.I. Act., came to be dismissed for default

vide impugned order. The material on record discloses that

the complainant/PW.1 as well as his advocate remained

absent when the case was posted for cross-examination of

PW.1, hence, the trial Court observing that the complainant

is not interested to prosecute the case, dismissed the

complaint.

4. The learned counsel for appellant submits that

he has got a very good case on merits and if the complaint

is not restored and appellant is not provided with an

opportunity to contest the matter on merits, then he will be

put to great injustice as the cheque amount is `4,00,000/-.

He submits that the complainant was not well and couldn't

present himself before the trial Court on 10.02.2021 and

henceforth, he will be diligent in prosecuting the case.

5. Considering the submission of the learned

counsel for appellant and also to meet the ends of justice, I

deem it proper to give an opportunity to the complainant to

prosecute the complaint. It is made clear that no further

indulgence will be shown to the complainant.

6. With the above observation, the appeal is

allowed. The impugned Order 10.02.2021 passed in C.C.

No.918/2019 on the file of the Principal Civil Judge and

JMFC, Chikkaballaupra is hereby set aside.

The complaint shall be restored to its file and the

learned Magistrate shall proceed further in accordance with

law.

Both the parties are directed to appear before the

trial Court on 10.01.2022.

Sd/-

JUDGE HB/-