Karnataka High Court
Mohammed Mehdi S/O Shafiahemed ... vs Mr. Liyakat Ali on 4 January, 2022
Bench: V Srishananda
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 4TH DAY OF JANUARY, 2022
BEFORE
THE HON'BLE MR. JUSTICE V. SRISHANANDA
CRIMINAL APPEAL NO.200144/2021
BETWEEN:
Mohammed Mehdi S/o Shariahemed Indikar,
Age : 35 years, Occ : Business,
R/o Darbar Galli, J.M.Road,
Vijayapur - 586 104.
... Appellant
(By Sri J.Augustin, Advocate)
AND:
Mr.Liyakat Ali
S/o Mohammed Ilyas Jamadar,
Age : 38 years, Occ: Business,
R/o Mustaf Manzil, Near Badi Kaman,
J.M.Road, Vijayapur - 586 104.
... Respondent
(By Sri R.S.Lagali, Advocate)
This Criminal appeal is filed under Section 378(4) of
Cr.P.C praying to set-aside the impugned judgment and
order dated 07.04.2021 passed in P.C.No.33/2019 by the
Hon'ble IV Addl. Civil Judge and JMF-II at Vijayapura and
consequently kindly be pleased to remand the matter back
for the trial Court in the interest of justice and equity.
2
This appeal coming on for Admission this day, the
Court delivered the following:
JUDGMENT
The present appeal is filed by the complainant who
has suffered an order of dismissal of the complaint filed
under Section 200 of Code of Criminal Procedure (for
short, 'Cr.P.C') in Private Complaint No.33/2019 which was
dismissed for non-prosecution by order dated 07.04.2021
by the learned trial Judge.
2. The brief facts of the case are as under :-
A complaint came to be filed under Section 200 of
Cr.P.C alleging commission of offence punishable under
Section 138 of the Negotiable Instrument Act by the
respondent/accused which was registered in Private
Complaint No.33/2019.
3. The learned trial Judge after registration of the
case posted the case for recording of sworn statement.
However, since the complainant did not appear before the
Court for considerable period of time, ultimately by order
dated 07.04.2021, the learned trial Judge dismissed the
complaint for non-prosecution. Being aggrieved by the
same, the complainant is before this Court.
4. Irrespective of whether the revision would lie
or an appeal would lie against the impugned order, since
the trial Court has committed a grave error in not following
the procedure prescribed by the Hon'ble Apex Court in the
case of Indian Bank Association & Others vs Union Of
India & others reported in (2014) 5 Supreme Court
Cases 590, the matter can be disposed of on merits on
short question whether the approach of the learned trial
Judge is justifiable or not.
5. In the case on hand, admittedly after
registration of the complaint the learned trial Judge has
posted the case for sworn statement. The Hon'ble Apex
Court in Indian Bank Association case (supra), the
Hon'ble Apex Court has issued following directions ;-
1) The Metropolitan Magistrate/Judicial Magistrate
(MM/JM), on the day when the complaint
under Section 138 of the Act is presented, shall
scrutinise the complaint and, if the complaint is
accompanied by the affidavit, and the affidavit
and the documents, if any, are found to be in
order, take cognizance and direct issuance of
summons.
2) The MM/JM should adopt a pragmatic and realistic
approach while issuing summons. Summons must
be properly addressed and sent by post as well as
by e-mail address got from the complainant. The
court, in appropriate cases, may take the
assistance of the police or the nearby court to
serve notice to the accused. For notice of
appearance, a short date be fixed. If the
summons is received back unserved, immediate
follow-up action be taken.
3) The court may indicate in the summon that if the
accused makes an application for compounding of
offences at the first hearing of the case and, if
such an application is made, the court may pass
appropriate orders at the earliest.
4) The court should direct the accused, when he
appears to furnish a bail bond, to ensure his
appearance during trial and ask him to take
notice under Section 251 CrPC to enable him to
enter his plea of defence and fix the case for
defence evidence, unless an application is made
by the accused under Section 145(2) for recalling
a witness for cross-examination.
(5) The Court concerned must ensure that
examination-in-chief, cross-examination and re-
examination of the complainant must be
conducted within three months of assigning the
case. The Court has option of accepting affidavits
of the witnesses instead of examining them in
court. The witnesses to the complaint and
accused must be available for cross-examination
as and when there is direction to this effect by
the court.
6. As per the above directions, the learned trial
Judge ought not to have posted the case for sworn
statement and should have straightaway issued the
summons after verifying the complaint and supporting
documents if prima facie case is made out. The learned
trial Judge having not adhered to the above directions, the
very fact of posting the case for recording sworn statement
itself is in correct and against directions issued by the
Hon'ble Apex Court in Indian Bank Association case
(supra). Therefore, without expressing any opinion on the
merits of the case as the accused is yet to be appear
before the learned trial Judge, this Court is of the
considered opinion that the appeal needs to be allowed.
Hence, the following :
ORDER
Appeal is allowed.
The matter is remitted to the trial Court with a
direction to adhere to the above directions in its letter and
spirit and proceed with the case in accordance with law.
It is made clear that the rights of the accused is not
affected by this order and he is yet to appear before trial
Magistrate.
In view of disposal of the appeal, I.A.No.1/2021 for
grant of leave to appeal is consigned to records.
Sd/-
JUDGE
sn
