Karnataka High Court
Rekha Vilas Toragal vs Rizwana Kutubuddin Athani on 21 January, 2022
Bench: Dr. H.B.Prabhakara Sastry
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 21ST DAY OF JANUARY, 2022
BEFORE
THE HON'BLE Dr.JUSTICE H.B.PRABHAKARA SASTRY
CRIMINAL APPEAL No.2783 OF 2013
Between :
Smt.Rekha Vilas Toragal,
Age: 38 years, Occ: Household Work,
R/o. Hidkal Dam, Tal: Hukkeri,
Dist : Belgaum. .. Appellant
( By Sri A.B.Koni, Advocate )
And :
Smt.Rizwana Kutubuddin Athani,
Age : 33 years, Occ: Service,
R/o : Subbayya Camp,
Shindihatti Colony,
Hidkal Dam, Tal: Hukkeri,
Dist: Belgaum. .. Respondent
( By Sri Ahmed Ali Rahiman Shah
And Sri Anwar Basha, Advocates )
This Criminal Appeal is filed under Section 378 (4) of
Cr.P.C. praying that the judgment of acquittal dated
19.02.2013, passed by the Hon'ble Civil Judge & JMFC Court,
Hukkeri, in C.C.No.569/2011, may kindly be set aside and
accused may be convicted for the offence punishable under
Section 138 of N.I.Act in the interest of justice.
This Criminal Appeal is coming on for Hearing through
Video Conference this day, the Court made the following :
Crl.A.No.2783/2013
2
ORDER
Called again in the afternoon. None appear in this
matter even through virtual mode. No reasons are
forthcoming for non-appearance of learned counsels in the
matter.
2. A perusal of the material placed before this Court
would go to show that this is an appeal filed by the
complainant seeking setting aside of the impugned judgment
passed by the trial Court acquitting the present respondent
for the offence punishable under Section 138 of Negotiable
Instruments Act, 1881 and seeking her conviction.
3. A perusal of the order sheet would go to show that
the present appeal is of the year 2013, as such, one of the
old appeal of this nature pending before this Court. The
learned counsels for both parties have remained absent when
the matter was taken up on 05.08.2021, 19.11.2021 and
26.11.2021. Learned counsel for the appellant had also
remained absent on 20.12.2021.
Crl.A.No.2783/2013
A perusal of order sheet would further go to show that,
earlier due to non-appearance of learned counsel for the
appellant, notice was ordered to be issued to the appellant
on 05.08.2021. In spite of service of Court notice upon the
appellant, still no progress is shown in the matter, on the
other hand, learned counsel for the appellant has
continuously remained absent on the dates mentioned above.
Hence, it is a clear case where the appellant is not evincing
any interest in proceeding further in the matter.
4. Though a Criminal Appeal would not generally be
dismissed for non-prosecution, however, the present appeal
is not against the judgment of conviction, but, it is against
the judgment of acquittal, that too, for an alleged offence
punishable under Section 138 of N.I.Act. Thus, when the
complainant himself is not interested in prosecuting the
appeal, there is no point in keeping this old appeal, which
actually originates from the Criminal Case of the year 2011,
still pending on the file. As such, the appeal can be
dismissed for non-prosecution.
Crl.A.No.2783/2013
5. Though the Standard Operating Procedure (SOP)
dated 18.01.2022 is in force, it has only mandated for
conducting of Court proceedings through virtual mode.
It does not give any exemption from appearance of the
learned counsels in the matter by virtual mode and
proceeding further in the matter by addressing their
arguments.
6. So when the matter is listed for final hearing, after
considering the guidelines issued under prevailing SOP, it
was required of the learned counsel for the appellant to
appear virtually and to proceed further in this appeal by
addressing his arguments. Since showing no reasons, the
appellant through his counsel has remained absent, the
Appeal stands dismissed for non-prosecution.
Sd/-
JUDGE
bk/
