Basavaraja K M S/O Late K. ... vs Sri Vijayapashanth Bhat
2022 Latest Caselaw 10246 Kant

           IN THE HIGH COURT OF KARNATAKA
                   DHARWAD BENCH

        DATED THIS THE 04TH DAY OF JULY 2022

                           BEFORE

           THE HON'BLE MR.JUSTICE K. NATARAJAN

         CRIMINAL APPEAL NO. 100241 OF 2022


BETWEEN:

BASAVARAJA K.M.
S/O. LATE K. MALLIKARJUNA,
AGED ABOUT 32 YEARS,
OCC: BUSINESS AND AGRICULTURE,
R/O. 2ND WARD, BEHIND GOVT. WOMENS SCHOOL,
HOLALU VILLAGE,
HUVINAHADAGALI TALUK,
BALLARI DISTRICT.
PINCODE-583219.
                                             ... APPELLANT
(BY SHRI. RAMESH, ADV. FOR
SHRI. MALLIKARJUN B. MADANALLI, ADV.)

AND:

SRI. VIJAYAPASHANATH BHAT
AGE ABOUT 42 YEARS,
OCCUPATION: BUSINESS,
R/O. TOTHADAKALLAHALLI VILLAGE,
YALAPUR TALUK (UK),
R/O. PLOT NO.101, 1ST FLOOR,
"SWARNADEEPA" APRT.,
BIJAI MAIN ROAD,
                                     2




MANGALUR-DAKSHINA KANNADA,
PIN-575004.
                                                      ... RESPONDENT
(NOTICE TO RESPONDENT IS DISPENSED WITH)



      THIS CRIMINAL APPEAL IS FILED UNDER SECTION 372 OF CR.P.C.
SEEKING TO SET ASIDE THE ORDER DATED 01.04.2022 PASSED IN C.C.
NO.422/2020 BY THE CIVIL JUDGE AND JMFC COURT HUVINAHADAGALI,
DIST. BALLARI AND MATTER MAY REMIND BACK TO TRIAL COURT FOR
ADJUDICATE THE MATTER ON MERITS AND PERMITTED TO PROCEED THE
MATTER TO TAKE STEPS OF THE CASE OFFENCE PUNISHABLE UNDER
SECTION 138 OF N.I. ACT.


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


                             JUDGMENT

Looking to the facts and circumstances of the case, issuance

of notice to respondent is dispensed with.

This appeal is filed by the complainant/appellant under

Section 378(4) of Cr.P.C., for setting aside the order of dismissal of

the complaint in C.C. No.422/2020 passed by the JMFC Court,

Huvinahadagali, District Ballari.

2. Having heard the arguments and perused the records.

3. The case of the appellant is that, the respondent said to

have borrowed loan of Rs.6,00,000/- for discharging his liability but

the cheque became dishonored and the notice has been issued

which was the accused did not replied. Hence, the private

complaint has been filed under Section 200 of Cr.P.C. filed for the

offence punishable under Section 138 of Negotiable Instruments Act

(for short 'N.I. Act'). The learned Magistrate after taking the

cognizance issued process under Section 204 of Cr.P.C. by issuing

summons. The summons were issued thrice, but summons was not

served on the respondent/accused. Therefore, it was ordered to

take further summons by RPAD. But, the learned counsel for the

appellant not furnished the P.F. and RPAD cover, therefore the

complaint came to be dismissed for default for not taking steps and

not filing RPAD cover.

4. Considering the facts and circumstances, the issuance

of notice to the respondent is dispensed with as the respondent not

served and appeared before the Trial Court.

5. On perusal of the order sheet produced by the learned

counsel for appellant, thrice notice has been issued through Court

summons, which was not served on respondent/accused.

Thereafter fresh steps has been taken by issuing notice through

RPAD, but inspite of three adjournments given by the Trial Court he

was not furnished process fee. Therefore the complaint become

dismissed for default. Of course, there is some default on the part

of the counsel for the appellant/complainant before the Trial Court

for not furnishing the process fee because of mistake committed by

the counsel for the appellant, but the litigant shall not be punished.

That apart, the complaint came to be filed on 16-09-2020 and the

matter was continued he has appeared before the Court and filed

the sworn statement and thereafter the Court taken cognizance and

Thereafter issued summons to the accused. But for simple reason

the complaint cannot be rejected for non filing process fee.

6. Therefore, the order passed by the Trial Court is liable

to set aside.

7. Accordingly, the appeal is hereby allowed.

8. The order of the dismissal of the complaint for default in

C.C. No.422/2020 dated 01.04.2022 is hereby set aside.

9. The complaint is restored on its original file before the

JMFC Court, Huvinahadagali, District Ballari/Vijayanagar District.

10. The appellant is hereby directed to appear before the

Trial Court without fail on 18.07.2022 and take steps.

Sd/-

JUDGE

SMM