Karnataka High Court
Mr. Balakrishna Shetty vs Mr. Prakash Sanghvi on 13 July, 2022
Bench: Mohammad Nawaz
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF JULY 2022
BEFORE
THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ
CRIMINAL APPEAL NO.1225 OF 2021
BETWEEN:
MR. BALAKRISHNA SHETTY
S/O APPU SHETTY
AGED ABOUT 64 YEARS
RESIDING AT 802, SHAKTHI PALACE,
KODIALGUTHU EAST,
MANGALURU, D.K.DISTRICT.
PIN-575003.
... APPELLANT
(BY SRI. RAVISHANKAR SHASTRY.G, ADVOCATE)
AND:
MR. PRAKASH SANGHVI
FATHERS NAME NOT KNOWN
MAJOR,
RESIDING AT D NO.403, JYOTHI RESIDENCY
4TH FLOOR, NEAR VEERABHADRA TEMPLE
MATADAKANI ROAD, MANGALURU
D.K.DISTRICT.
PIN-575004
... RESPONDENT
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
378(4) CR.P.C PRAYING TO SET ASIDE THE ORDER DATED
16.03.2021 PASSED BY THE LEARNED JMFC (IV COURT)
MANGALURU IN C.C.NO.4926/2019 MAY BE RESTORED BY
ALLOWING THIS APPEAL, ACQUITTING THE
RESPONDENTS/ACCUSED FOR THE OFFENCE P/U/S 138 OF
THE N.I ACT.
2
THIS APPEAL IS COMING ON FOR ORDERS THROUGH
VIDEO CONFERENCE/PHYSICAL HEARING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING;
JUDGMENT
Special leave to appeal is granted. I.A No.1/2021 is
allowed.
2. This appeal is preferred by the complainant
praying to set aside the order dated 16.03.2021 passed
by the Court of JMFC (IV Court) Mangaluru, in C.C
No.4926/2019, whereby the complaint filed against the
respondent/accused, alleging an offence punishable
under Section 138 of the N.I. Act has been dismissed for
non-prosecution.
3. I have perused the material on record.
4. The complaint was filed on 21.06.2018, in
respect of dishonor of a cheque issued by the
respondent for a sum of Rs.1,45,000/-.The order sheet
of the Trial Court disclose that after the case was
registered, summons was issued to the accused for his
appearance and since the accused did not respond to the
summons inspite of service, NBW came to be issued.
Thereafter, the accused appeared and he was released
on bail. On 18.12.2019 he filed an application seeking
permission to cross examine the witness and also to lead
his evidence. Subsequently on 09.01.2020, 29.01.2020,
14.02.2020, 03.03.2020 as well as on 10.03.2020 both
the accused and the complainant remained absent.
Thereafter, in view of the SOP (Standard Operating
Procedure) and the guidelines issued due to pandemic,
the matter was adjourned from time to time. It appears
from the order sheet that even after the SOP was
modified the complainant and the accused remained
absent on subsequent dates and on 16.03.2021 the Trial
Court proceeded to dismiss the complaint for non
prosecution.
5. The Trial Court has observed that the
proceedings were initiated by the complainant in the year
2019 and the presence of accused was secured on
18.12.2019. Further, the matter was posted for
complainant's evidence on 19.01.2020. It is observed
that the complainant has continuously remained absent
and failed to lead his evidence. Hence, observing that the
complainant is not interested to proceed with the matter,
Trial Court dismissed the complaint for non-prosecution.
6. The learned counsel for the appellant submits
that the complainant is a senior citizen and he is
suffering from various age old ailments. Further, in view
of the pandemic and lock down during the said period, he
could not appear before the Trial Court. He submits that
non appearance of the complainant is not intentional but
for bonafide reasons. He further submits that henceforth,
complainant will diligently prosecute his complaint.
7. Taking into consideration all the above facts and
circumstances and also taking note of the fact that even
the accused remained absent on those days when the
case was listed, to meet the ends of justice, it is just and
proper to give an opportunity to the complainant to
prosecute his complaint, however by imposing cost.
Hence, the following
ORDER
The order dated 16.03.2021 passed by the Court of
JMFC (IV Court) Mangaluru in C.C No.4926/2019,
dismissing the complaint for non prosecution is hereby
set aside.
The complaint shall be restored to its file and the
learned Magistrate is directed to proceed further in
accordance with law.
The complainant is directed to appear on
25.07.2022 before the Trial Court without further notice.
The complainant shall pay a sum of Rs.5,000/-
(Rupees Five Thousand only) towards cost, which shall
be deposited with the District Legal Services Authority,
Mangaluru and he shall furnish the receipt for having
paid the cost before the Trial Court on the next date of
hearing.
SD/-
JUDGE
VS
