Karnataka High Court
H N Nandisha vs B S Yaduraj on 28 October, 2022
Bench: J.M.Khazi
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF OCTOBER, 2022
BEFORE
THE HON'BLE MS.JUSTICE J.M.KHAZI
CRIMINAL APPEAL NO.188 OF 2018
BETWEEN:
H N NANDISHA
S/O LATE H T NAGARAJ
AGED ABOUT 40 YEARS
THYAGARAJ COLONY
SHANIVARSANTHE
SOMWARPET TALUK,
KODAGU DISTRICT - 571 236
...COMPLAINANT/APPELLANT
(BY SRI. KUMARA K G, ADVOCATE)
AND:
B S YADURAJ
S/O LATE N M SIDDAPPA
AGED ABOUT 52 YEARS
R/AT NILUVAGILU VILLAGE,
KODLIPET HOBLI
SOMWARPET TALUK,
KODAGU DISTRICT - 571 236
...ACCUSED/RESPONDENT
(BY SRI. C.P.PUTTARAJU, ADVOCATE)
THIS APPEAL IS FILED UNDER SECTION 378(4) OF THE
CODE OF CRIMINAL PROCEDURE PRAYING TO SET ASIDE THE
ORDER PASSED IN CRIMINAL CASE NO.892/2015 BY THE
PRL. CIVIL JUDGE AND JMFC, SOMWARPET DATED
08.01.2018 AND PASS SUCH OTHER ORDER OR ORDERS AS
THIS HON'BLE COURT DEEMS TO FIT TO GRANT IN THE
2
CIRCUMSTANCES OF THE CASE, IN THE INTEREST OF
JUSTICE.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Though the matter is listed for admission today,
with the consent of both the counsel the same is taken
up for final disposal.
2. This appeal is by complainant against
dismissal for default of complaint filed by him for the
offence punishable under Section 138 of N.I.Act.
3. For the sake of convenience the parties are
referred to by their rank before the trial Court.
4. As evident from the complaint averments, it is
the case of the complainant that accused borrowed a
sum of Rs.90,000/- from him on 30.10.2014 with a
promise to repay the same within three months and
towards repayment of it, he issued cheque dated
31.01.2015 and on presentation it was dishonoured on
the ground of insufficiency of funds.
5. After recording sworn statement, the trial
Court took cognizance. In fact accused appeared and
secured bail and the matter was posted for complainant's
evidence. When complainant failed to adduce evidence
inspite of granting sufficient opportunities, vide order
dated 08.01.2018, the trial Court dismissed the
complaint for non-prosecution.
6. Against the said order, complainant has filed
this appeal contending that at the relevant point of time
his father was admitted to the hospital and as he was
taking care of him, he could not attend the Court
resulting in the dismissal of the complaint. The said
reason assigned by the complainant is not seriously
disputed by the accused. Having regard to the specific
case put forth by the complainant and the fact that it is a
case of accused allegedly borrowing a sum of
Rs.90,000/- and having issued a cheque towards
repayment of the same, I am of the considered opinion
that complainant deserves an opportunity to prove his
case. Of course for having driven accused to this Court,
complainant is liable to compensate him.
7. In the result, I proceed to pass the following:
ORDER
(i) Appeal is allowed, subject to a condition that
complainant shall pay a cost of Rs.5,000/- to
the accused before the trial Court. The order
dated 08.01.2018 is set aside. Complaint is
restored to the file.
(ii) Both the parties are directed to appear before
the trial Court on 29.11.2022 without waiting
for notice from it.
(iii) Office is directed to transmit the trial Court
Records forthwith along with copy of this
order.
Sd/-
JUDGE
RR/MDS
