Sri. L. Lakshminarayana vs Sri Srinivasa @ Purahalli ...
2022 Latest Caselaw 4817 Kant

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   IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 15TH DAY OF MARCH, 2022

                         BEFORE

          THE HON'BLE MR. JUSTICE K. NATARAJAN

            CRIMINAL APPEAL NO.146/2022

BETWEEN:

SRI.L.LAKSHMINARAYANA
SON OF LATE G.LAKSHMAIAH
AGED ABOUT 48 YEARS
RESIDING AT J.VENKATAPURA VILLAGE
JANGAMAKOTE HOBLI
SIDLAGHATTA TALUK
CHIKKABALLAPURA DISTRICT
PIN-562 102
                                             ...APPELLANT
       (BY SRI M. RAMASWAMY, ADVOCATE)

AND:

SRI.SRINIVASA @ PURAHALLI SRINIVASA
S/O SRI.CHOWDAPPA
AGED ABOUT 52 YEARS
R/AT VEMAGAL VILLAGE
NARASAPURA ROAD
KOLAR TALUK
PIN 563133
                                           ...RESPONDENT
       (BY SRI M.SUBBAREDDY, ADVOCATE)


      THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4)
OF CR.P.C., PRAYING TO SET ASIDE THE IMPUGNED ORDER
DATED 18.06.2019 OF DISMISSAL FOR DEFAULT PASSED IN
C.C.NO.464/2016 ON THE FILE OF PRINCIPAL CIVIL JUDGE AND
J.M.F.C., CHIKKABALLAPURA AND TO RESTORE THE COMPLAINT
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IN C.C.NO.464/2016 TO ITS FILE FOR PROSECUTING THE SAME
ON MERITS.

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

                        JUDGMENT

This appeal is filed by the appellant under section

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

the complaint passed in C.C.No.464/2016 pending on the file

of the Principal Civil Judge and JMFC at Chikkaballapura and

to restore the complaint in C.C.No.464/2016, for the offence

punishable under section 138 of Negotiable Instruments Act,

1881.

2. Heard the arguments of learned counsel for the

appellant and learned counsel for the respondent and

perused the records.

3. The case of the appellant is that, the appellant is

the complainant and the respondent was accused before the

Trial Court. The appellant-complainant has filed the

complaint under section 200 of Cr.P.C for the offence

punishable under section 138 of N.I Act for dishonor of

cheque. After taking cognizance of the offence, summons

were issued to the accused which was not served.

Thereafter, notice also issued through RPAD, which was not

served. Hence, non-bailable warrant was issued against the

respondent. However, the learned Magistrate was under

training and there was no sittings. Thereafter, in-charge

Court has issued non-bailable warrant to the accused. That

on 18.06.2019, the complainant was absent. Steps was not

taken. Therefore, the complaint was dismissed for default

which amounts to acquittal under section 256 of Cr.P.C which

is under challenge.

4. Having heard the arguments of learned counsel

for the appellant and learned counsel for the respondent, the

fact that remains that the Trial Court took the cognizance of

the alleged offence under section 138 of N.I Act, summons

were issued for long time from 2016 onwards continuously,

but summons was not served and summons also issued

through RPAD on various times and subsequently, the order

remained as the Trial Court Magistrate was under training

and therefore, matter was placed before in-charge court and

steps were taken for issuing warrant. Subsequently, six dates

prior to the dismissal of the complaint on 18.06.2019, the

Trial Court judge was under training. Then case was called

on 18.06.2019, on the same day the case was dismissed for

default not taking steps. As rightly argued by the learned

counsel, the trial Court/ Magistrate could have given one

more chance for steps, even though steps have not been

taken for almost two years and not able to secure the

presence of accused. This Court also held in the similar case

in Crl.P.No.775/2020, that once the Magistrate took

cognizance and issued non-bailable warrant and earlier non-

bailable warrant is not returned, the Magistrate shall not

dismiss complaint. Here in this case though steps taken and

non-bailable warrant issued earlier, there was no reference

whether non-bailable warrant issued or not and due to

continuous non-sitting in the Court as the Magistrate was

under training, the Magistrate could have given one more

chance to the complainant for taking steps. Such being the

case, dismissal of the complaint for default is liable to be set-

aside. Hence, I pass the following:

ORDER

The criminal appeal is allowed.

The impugned order dated 18.06.2019 of dismissal for

default passed in C.C.No.464/2016 on the file of the Principal

Civil Judge and JMFC at Chikkaballapura, is hereby set-aside.

Original case is restored to the Magistrate.

The appellant as well as the respondent is directed to

appear before the Magistrate on 12.04.2022, without any

further notice.

Office to send the copy of the order immediately.

Sd/-

JUDGE

SKS