Sri. Mallikarjuna Swamy. D. M vs Sri. U. R. Annesh
2022 Latest Caselaw 11382 Kant

 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 16 T H DAY OF AUGUST, 2022

                             BEFORE

THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR

          CRIMINAL APPEAL NO.1404 OF 2022

BETWEEN:

Sri Mallikarjuna Swamy D.M
S/o Neelakantaiah D.M
Aged about 38 years
R/o Anaji Villag e
Davanagere Taluk-577 002
Davanagere District.
                                                     ...Appellant
(By Sri S.K. Nishanth, Advocate)

AND:

Sri U.R. Annesh
S/o Rud rapp a, Major
R/o Ajjapp ara Family
Somlap ura Villag e
Channagiri Taluk-577213
Davanagere District.
                                                 ...Respondent

     This Criminal Appeal is filed under Section 378(4)
of Cr.P.C., praying to set asid e the judgment and
order   d ated   22.02.2022      passed   by   the   learned    II
Additional     Civil   Judge    and   JMFC,    Davanag ere      in
C.C.No.239/2021 consequently allow the appeal and
thereby      convict   the     respondent/accused      for     the
offence p unishab le und er section 138 of N.I.Act.
                                 :: 2 ::


     This Criminal Appeal coming on for orders this
day, the Court mad e the following :

                           ORDER

IA No.2/2022 is filed under Section 5 of the

Limitation Act seeking condonation of delay of 97

days in filing this appeal.

2. This appeal has arisen from the judgment

dated 22.02.2022 dismissing the appellant's

complaint under Section 200 of Cr.P.C., for the

offence punishable under Section 138 of the

Negotiable Instruments Act.

3. According to appellant's counsel, the

appellant had filed a criminal petition under

Section 482 of Cr.P.C., before this court

challenging the order of rejecting his application

for amending a typographical error crept in the

complaint. At the initial stage in the criminal

petition, this court granted interim order staying

the proceedings in the complaint. However, it was :: 3 ::

dismissed on 28.06.2022. Therefore it is stated

that considerable time was lost in prosecuting the

criminal petition till 28.06.2022 and therefore the

appeal could not be filed within time.

4. It is to be stated that the reason thus

given by the appellant cannot be considered

because, the moment the Magistrate passed the

judgment on 22.02.2022 acquitting the

respondent/accused of the offence under Section

138 of N.I.Act, the criminal petition pending

before this court became infructuous. In this

view, the appellant could have taken steps to

prefer the appeal within prescribed time. He

should not have waited for disposal of the criminal

petition. Therefore this reason cannot be

accepted.

5. In the affidavit, it is also stated that the

appellant traveled outside Bengaluru in the month

of July, 2022 and therefore he could not contact :: 4 ::

his Advocate. This reason also cannot be

considered, because, by the time he went out of

Bengaluru, 90 days time had expired. Though

delay is 97 days, the reasons given by the

appellant for condoning delay are neither

convincing nor sufficient. I do not find a good

reason to issue notice to the respondent.

Therefore IA No.2/2022 is rejected. Consequently,

appeal is also dismissed.

IA No.1/2022 does not survive for

consideration, it stands disposed of accordingly.

Sd/-

JUDGE

Kmv/-