Dundappa S/O Gireppa Ankalagi vs Dharekrishna S/O Satappa ...
2021 Latest Caselaw 2341 Kant

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             IN THE HIGH COURT OF KARNATAKA
                     DHARWAD BENCH

            DATED THIS THE 23rd DAY OF JUNE 2021

                          BEFORE

             THE HON'BLE MRS.JUSTICE M.G.UMA

              CRIMINAL APPEAL NO.100127/2021

BETWEEN :

DUNDAPPA S/O.GIREPPA ANKALAGI,
AGE-40 YEARS, OCC-AGRICULTURE,
R/O.KALLOLI, TAL-GOKAK,
DIST-BELAGAVI-590 001.
                                               ...APPELLANT
(BY SRI PRASHANT MATHAPATI, ADVOCATE)


AND :

DHAREKRISHNA S/O.SATAPPA BADAGANVI,
AGE-38 YEARS, OCC-AGRICULTURE,
R/O.NAGANUR, TAL-GOKAK, DIST-BELGAVI.
                                             ... RESPONDENT



     THIS APPEAL IS FILED UNDER SECTION 378(4) OF CR.P.C.
AND PRAYS TO ALLOW THE CRIMINAL APPEAL BY SETTING ASIDE
THE JUDGMENT AND ORDER OF ACQUITTAL DATED 03.02.2020
UNDER SECTION 138 OF N.I.ACT IN C.C.NO.502/2015 ON THE FILE
OF PRINCIPAL CIVIL JUDGE AND JMFC, GOKAK.
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      THIS APPEAL COMING ON FOR ORDERS THIS DAY, THE
COURT DELIVERED THE FOLLOWING:

                             JUDGMENT

The appellant is before this Court aggrieved by the impugned

order dated 03.02.2020 passed in C.C.No.502/2015 by the learned

Principal Civil Judge and J.M.F.C., Gokak (for short 'the Trial Court')

dismissing the complaint for default i.e., for non-prosecution.

2. Brief facts of the case are that the appellant herein as

complainant filed the private complaint in PCR No.137/2014 before

the trial Court against the respondent/accused, alleging commission

of the offence punishable under Section 138 of Negotiable

Instruments Act, 1881 (for short 'the N.I. Act'). The trial Court

took cognizance of the offence and C.C.No.502/2015 was registered

against the accused for the above said offence. It is stated that the

accused had appeared before the trial Court represented by his

Advocate and pleaded not guilty for the charges leveled against

him. Thereafter, the appellant/complainant was examined before

the trial Court and statement of the accused under Section 313 of

Cr.P.C. was recorded. In the meantime, the accused remained

absent. NBW was issued against him with notice to sureties. On

03.02.2020, the trial Court noticed that since last four dates of

hearings steps against the absconding accused was not taken,

proceeded to dismiss the complaint for default i.e., for non

prosecution. Aggrieved by dismissal of the case, complainant is

before this Court in appeal.

3. Heard Sri Prashant Mathapati, learned counsel for

appellant.

4. This appeal is listed for orders. With consent of learned

counsel for the appellant it is taken up for final disposal.

5. Learned counsel for the appellant submitted that the

accused had borrowed loan from the complainant and to discharge

legally recoverable debt, he had issued the cheque in question. But

the same was dishonoured on presentation for encashment. Inspite

of issuance of legal notice, the accused has not repaid the cheque

amount and thereby, he has committed the offence punishable

under Section 138 of the N.I.Act.

6. The appellant herein filed the private complaint in PCR

No.137/2014 against the accused for the above said offence. The

trial Court took cognizance of the offence after satisfying with the

materials placed before it and registered C.C.No.502/2015. In

response to the summons issued by the trial Court, the accused has

appeared before the trial Court represented by his Advocate and

pleaded not guilty for the offence. Even the matter was referred to

mediation to settle the dispute between the parties. Subsequently,

since the dispute was not settled, the complainant examined

himself as P.W.1. On 28.03.2019, P.W.1 was fully examined and

the matter was posted for recording of the statement of the

accused under Section 313 of Cr.P.C. The statement was recorded

by the trial Court, subsequently, the accused remained absent and

was absconding. N.B.W was issued repeatedly against him with

notice to sureties. But his presence could not be secured before the

Court. At this juncture, the trial Court proceeded to dismiss the

case vide impugned order.

7. Learned counsel submits that the complainant was

diligent throughout in prosecuting the matter. He is ready and

willing to co-operate with the trial Court. Hence, he prays for

allowing the petition. Learned counsel further submits that since the

accused was absconding before the trial Court and NBW was un-

executed, issuance of notice to respondent is to dispensed with in

the interest of justice.

8. The submission of the learned counsel for the appellant

to dispense with the notice to the respondent is considered in the

light of the order sheet maintained by the trial Court. I am satisfied

with the submission made by the learned counsel for the appellant.

When the matter was set down for evidence of the accused, he

remained absent. NBW could not be executed against him.

Therefore, notice to respondent/accused is dispensed with.

9. In view of the submissions made by the learned

counsel for the appellant, the point that would arise for my

consideration is,

"Whether the impugned order dated 03.02.2020 dismissing the complaint for default by the Trial Court is liable to be set aside?"

10. My answer to above the point is in 'affirmative' for the

following:

REASONS

11. It is stated that the complainant filed private complaint

in PCR No.137/2014 before the trial Court against the respondent

alleging commission of the offence punishable under Section 138 of

the N.I.Act. The trial Court took the cognizance of the offence and

registered C.C.No.502/2015. The accused appeared before the trial

Court representing by his counsel. It is seen in the order sheet of

the trial Court that even the matter was referred to the mediation

to explore the possibility of settlement. However, subsequently

when it is posted for cross-examination of the complainant, the

accused has cross-examined the complainant fully. His statement

under Section 313 of Cr.P.C. was also recorded and the matter was

posted for defence evidence. At this stage, the accused remained

absent and even the NBW issued repeatedly could not be executed.

Notices to sureties were also issued by the trial Court. However, on

03.02.2020 the trial Court proceeded to dismiss the case for default

i.e., for non-prosecution. The trial Court noticed that for several

dates there was no representation on behalf of the complainant and

there is no reason to adjourn the matter.

12. Learned counsel for the appellant submits that in the

meantime, the counsel representing the complainant was not

keeping well and subsequently he died. Under such circumstances,

complainant could not be present before the trial Court. Absence of

the complainant is not intentional or deliberate. Hence, the appeal

may be allowed in the interest of justice.

13. I find considerable force in the submissions made by

the learned counsel for the appellant in this regard. If the impugned

order is not set aside and the case is not restored to file, the

valuable right which is accrued in favour of the complainant will be

taken away. Therefore, I am of the opinion that the impugned order

dismissing the case for default could be set aside subject to terms.

Hence, I answer the above point in the affirmative and proceed to

pass the following :

ORDER

The Criminal Appeal is allowed.

The impugned order dated 03.02.2020 passed in Criminal

Case No.502/2015 by the learned Principal Civil Judge and JMFC,

Gokak dismissing the case for default i.e, for non-prosecution is set

aside. Criminal Case No.502/2015 is restored on its file, subject to

fine of Rs.2,000/- to be deposited by the complainant before the

trial court within four weeks from today, failing which, the

complainant will be precluded from taking advantage of this order.

It is needless to state that on restoration of the criminal case,

the complainant should be very diligent in prosecuting the matter.

Sd/-

JUDGE

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