Sri.Deepak S/O Mallu Kankonkar vs Shri.S. Ishwar Redddy
2022 Latest Caselaw 2343 Kant

              IN THE HIGH COURT OF KARNATAKA
                      DHARWAD BENCH

          DATED THIS THE 14th DAY OF FEBRUARY 2022

                          BEFORE

          THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ


               CRIMINAL APPEAL No.100457/2019

BETWEEN

1.    SRI. DEEPAK S/O MALLU KANKONKAR
      AGE: 55 YEARS, OCC: BUSINESSMAN,
      R/O: H.NO.428, MALLIKARJUN RESIDENCY,
      IIND CROSS, BHAGYANAGAR, BELAGAVI.

                                                ...APPELLANT

(BY SRI RAM P. GHORPADE, ADVOCATE)

AND

1 . SHRI. S. ISHWAR REDDDY
    AGE: 45 YEARS, OCC: BUSINESS,
    R/O: 5TH CROSS, BHAGYANAGAR,
    ANGOL, BELAGAVI.
2 . SHRI. SHAFI S/O BABASAB SAYYED
    AGE: 40 YEARS, OCC: BUSINESSMAN,
    R/O: BESIDES JOLLY HOTEL,
    TQ: JOIRDA, DIST: KARWAR,
    NOW R/O 5TH CROSS,
    BHAGYANAGAR, ANGOL, BELAGAVI.

                                              ...RESPONDENTS

(BY SRI NEELENDRA GUNDE FOR R2;
      NOTICE TO R1 ABATED)

      THIS CRIMINAL APPEAL IS FILED U/SEC.378(4) OF CR.P.C.,
PRAYING TO GRANT LEAVE TO APPEAL, TO CALL FOR THE
RELEVANT RECORDS AND ALLOW THIS CRIMINAL APPEAL, BY
                                    2



SETTING ASIDE THE ORDER OF ACQUITTAL DATED 25.10.2019
PASSED IN C.C. NO.669/2014, BY THE PRINCIPAL CIVIL JUDGE
AND JMFC COURT AT KHANAPUR AND MATTER BE REMAND TO THE
CONCERNED COURT BELAGAVI.

     THIS APPEAL COMING ON FOR ORDERS THIS DAY, THE
COURT DELIVERED THE FOLLOWING:

                            JUDGMENT

2. This appeal is preferred against the order

dated 25/10/2019 passed by the Prl. Civil Judge

and JMFC, Khanapur in C.C.No.669/2014,

dismissing the complaint for not taking effective

steps.

3. The complaint was filed alleging an

offence punishable under Section 138 of the

N.I.Act against the respondents-accused Nos.1 and

2. In spite of issuance of summons and NBW

against the accused, NBW could not be executed

as such, the learned Magistrate vide order dated

25/10/2019 dismissed the complaint.

4. It is observed by the trial Court that,

except paying process fee, no other effective steps

were taken to execute the NBW and therefore no

purpose would be served unless NBW is executed.

5. Learned counsel for the appellant submits

that accused No.1 is no more. He submits, in fact

steps were taken on several occasions. Since,

accused No.2 is not residing in the address shown,

the summons and NBW could not be executed.

6. Respondent No.2 who is present before

the court in pursuance of the NBW issued against

him by this court,submits that now he is not

residing in the address shown. In that view of the

matter, I deem it appropriate to give an

opportunity to the complainant to prosecute his

case before the trial Court. Hence, the following

ORDER

i) The appeal is allowed.

ii) The impugned order dated 25/10/2019

passed by the Principal Civil Judge and

JMFC, Khanapur in CC No.669/2014 is

hereby set aside and the complaint is

restored back to its file.

iii) The learned Magistrate shall dispose of

the case as expediently as possible

subject to co-operation by both the

parties.

iv) Both the parties are directed to appear

before the trial court on 2/3/2022

without fail and shall appear on the

dates fixed by the learned Magistrate.

v) All the contentions of the parties are

kept open.

Sd/-

JUDGE

VB/-