Karnataka High Court
Sri Shivalinga vs Sri J Manju on 20 December, 2023
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NC: 2023:KHC:46524
CRL.A No. 689 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE G BASAVARAJA
CRIMINAL APPEAL NO. 689 OF 2015
BETWEEN:
SRI. SHIVALINGA,
S/O R.LINGAIAH,
AGED ABOUT 41 YEWARS,
R/AT NO.92, 10TH CROSS,
CHANDRA NAGAR,
KUMARASWAMY LAYOUT,
BANGALORE-560 078.
...APPELLANT
(BY SRI. SUMAN M., ADVOCATE FOR
SRI. NAGARAJ DAMODAR, ADVOCATE)
AND:
SRI. J.MANJU,
S/O K.JYOTHI,
AGED ABOUT 34 YEARS,
Digitally signed R/AT NO.291, 22ND CROSS,
by SANDHYA S 69TH MAIN, NEAR 15 E BUS STOP,
Location: High KUMARASWAMY LAYOUT,
Court of
Karnataka BANGALORE-560 078.
...RESPONDENT
(BY SRI. C.RAJANNA, ADVOCATE [ABSENT])
THIS CRL.A. FILED U/S 378(4) CR.P.C. PRAYING TO SET
ASIDE THE ORDER DATED 31.01.2015 AND CONSEQUENTLY
PASS AN ORDER TO RESTORE THE CRIMINAL CASE
NO.10740/2014 TO THE ORIGINAL FILE BEFORE THE XXII
ADDL. CHIEF METROPOLITAN MAGISTRATE, BANGALORE.
THIS APPEAL, COMING ON FOR HEARING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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NC: 2023:KHC:46524
CRL.A No. 689 of 2015
JUDGMENT
The appellant/complainant has preferred this appeal
against the order dated 31.01.2015 in C.C.No.10740/2014
as the trial Court has dismissed the complaint for non-
prosecution.
2. The rank of the parties in this appeal are
referred in the same rank as referred by the trial Court.
3. Heard arguments on complainant/appellant's
side.
4. Perusal of the certified copy of the order sheet
pertaining to C.C.No.10740/2014 reveals that the
complainant had filed a complaint under Section 138 of
N.I. Act. After taking cognizance, the trial Court registered
a case in C.C.No.10740/2014 against the accused for the
commission of offence punishable under Section 138 of
N.I. Act. Summons was issued to the accused. In response
to summons, accused appeared before the trial Court and
was enlarged on bail. The substance of plea was recorded.
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Accused pleaded not guilty and claimed to be tried. To
prove the case of the complainant, PW.1 was partly
examined. On 22.01.2015 case was posted for further
chief of PW.1 and then the case was posted to
31.01.2015. On 31.01.2015, the trial Court passed the
impugned order, which reads as under:
"Case called at 4.00 pm PW1 and his counsel
absent. Accused present. In spite of opportunity
has been given to the complainant to lead the
further chief examination of PW1. But both
complainant and counsel absent. Seems that the
complainant not interested to prosecute his case
in accordance with law. Hence the evidence of
PW1 discorded consequently complaint is dismiss
for non-prosecution. Since the case is one of for
summary trial consequently, accused is acquitted.
Close this case."
5. It is submitted by the complainant/appellant's
counsel that the non-appearance of the complainant and
his counsel before the trial Court on 31.01.2015 is for
bonafide reason and sought for allow this appeal.
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6. The trial Court had given only one opportunity
to PW.1. Considering the facts and circumstances of the
case, it is just and proper to provide one more opportunity
to the complainant to prosecute this case. Hence, I
proceed to pass the following:
ORDER
1. The appeal is allowed;
2. The impugned order dated 31.01.2015 in
C.C.No.10740/2014 passed by the XXII
ACMM, Bangalore is hereby set aside;
3. C.C.No.10740/2014 shall be restored to its
file;
4. The complainant/appellant is directed to
appear before the trial Court on
17.01.2024 without seeking further notice
from the trial Court;
5. The trial Court is directed to secure the
accused and proceed with the case in
accordance with law providing an
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opportunity to the complainant to adduce
his further evidence;
6. Registry is directed to send a copy of this
judgment along with trial Court records to
the concerned trial Court.
Sd/-
JUDGE
PGG
