Mrs. Shabana Banu vs Mrs. Rasheeda Khader
2023 Latest Caselaw 9107 Kant

Karnataka High Court

Mrs. Shabana Banu vs Mrs. Rasheeda Khader on 4 December, 2023

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                                                           NC: 2023:KHC:43592
                                                      CRL.A No. 1039 of 2013




                     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                          DATED THIS THE 4TH DAY OF DECEMBER, 2023

                                           BEFORE
                           THE HON'BLE MR JUSTICE G BASAVARAJA
                             CRIMINAL APPEAL NO. 1039 OF 2013
                   BETWEEN:
                   MRS. SHABANA BANU,
                   W/O ABDUL AZEEZ,
                   AGED ABOUT 30 YEARS,
                   KANDETTU, URVA STORE,
Digitally signed   ASHOK NAGAR POST,
by SANDHYA S
Location: High     MANGALORE, D.K. -575 006.
Court of
Karnataka                                                        ...APPELLANT
                   (BY SRI. SAMPREETH V, ADVOCATE FOR
                       SRI. SANDESH J. CHOUTA, ADVOCATE)

                   AND:
                   MRS. RASHEEDA KHADER,
                   W/O ABDUL KHADER,
                   R/A SRI LAXMI HOUSE,
                   II CROSS, MUNNUR POST,
                   KUTHAR PADAVU,
                   MANGALORE, D.K. - 574 183.
                                                               ...RESPONDENT
                   (RESPONDENT SERVED AND UNREPRESENTED)

                        THIS CRL.A IS FILED U/S.378(4) CR.P.C BY THE ADV.
                   FOR THE APPELLANT PRAYING TO SET ASIDE THE IMPUGNED
                   ORDER DATED 24.9.2012 PASSED BY THE V J.M.F.C.,
                   MANGALORE IN C.C.NO.554/2012 AND ORDER DATED 17.6.13
                   PASSED BY THE IV ADDL. DIST. AND S.J., D.K., MANGALORE
                   IN CRL.R.P NO. 139/13 GRANT SUCH OTHER AND FURTHER
                   RELIEFS IN THE INTEREST OF JUSTICE AND EQUITY.
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                                             NC: 2023:KHC:43592
                                         CRL.A No. 1039 of 2013




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

                            JUDGMENT

The appellant/complainant has preferred this appeal

against the order passed by the J.M.F.C (V Court), Mangalore

in CC.No.554/2012 dated 24.09.2012 as the trial Court has

dismissed the complaint for non prosecution acting under

Section 256(1) of Cr.P.C.

2. Notice is duly served to the respondent, but

unrepresented.

3. Learned counsel for the appellant has submitted his

arguments that the impugned order passed by the trial Court is

illegal and unsustainable under law and facts. The learned

Magistrate has failed to take note of the complaint that the

complainant had failed to pay the process fee. However, the

trial Court has observed "steps not taken", which is contrary to

the facts of the case. The learned Magistrate has adopted very

unjust method which resulted in failure of justice. Learned

Magistrate has committed an error in acquitting the accused

only for not taking steps. On all these grounds sought to allow

the appeal.

NC: 2023:KHC:43592

4. I have examined the impugned order passed by the

trial Court which reads as follows:

"Complainant absent. E.P. filed.

This case is set down today for taking steps.

perused the order sheet.

It reveals that sufficient opportunities have already been given to the complainant to tender before the Court for taking steps.

In spite of giving sufficient opportunities, the complainant remained absent. Without support of the complainant this Court cannot proceed with this case.

Cases under section 138 of N.I. Act is the summary proceedings. If this Court is going on giving time on the payer of the counsel foe complainant the basic purpose of the Act will be defeated. The intention of the legislators in framing of this Act is to give a speedy justice to the people. Hence by observing the decision rendered by this Hon'ble High Court of Karnataka in 2009 A.I.R Kar. 1-211 in M.Mahalingam V/s Shashikala. This case is dismissed for on prosecution by acting under Section 256(1) of Cr.P.C.

The accused is acquitted for the offence punishable under Section 138 of N.I. Act, his bail bond and surety bond stands cancelled."

5. The appellant has produced the extract of paying

process fee, which reveals that in CC.No.554/2012 the

complainant has paid an amount of one rupee as process fee.

Though the complainant has paid the process fee the

NC: 2023:KHC:43592

concerned case worker has not noted down the same in the

order sheet. Even in the order sheet the concerned case worker

has not stated anything with regard to payment of this process

fee. The trial Judge has not verified as to the payment of

process fee paid by the complainant. Hence, the impugned

order passed by the trial court is not sustainable under law.

Accordingly, I proceed to pass the following:

ORDER

1. The appeal is allowed.

2. The judgment of acquittal passed in CC

No.554/2012 dated 24.09.2012 by the

JMFC (V Court), Mangalore, is set-

aside.

3. CC.No.554/2012 on the file of V J.M.F.C

(V Court), Mangalore, shall be restored.

4. The matter is remitted back to the trial

Court with a direction to provide an

opportunity to the accused to adduce his

evidence in accordance with law.

NC: 2023:KHC:43592

5. Trial Court is directed to proceed with

the case in accordance with law.

6. Trial Court is directed to issue summons

to the accused as the complainant has

already paid the Court process fee.

7. Trial Court is directed to secure the

accused and proceed with the case in

accordance with law.

8. Both parties are directed to appear

before the trial Court on 21.12.2023

without seeking any further notice.

9. Registry is directed to send a copy of

this judgment along with trial Court

records to the trial court forthwith.

Sd/-

JUDGE

PK CT: BHK