Karnataka High Court
Shri.Veerayya S/O Veerabasayya ... vs Balakrishna T. Magajikondi on 4 December, 2023
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
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NC: 2023:KHC-D:14107
CRL.A No. 100257 of 2022
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 4TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL APPEAL NO. 100257 OF 2022
BETWEEN:
1. SHRI. VEERAYYA S/O VEERABASAYYA KOCHALAPURMATH,
SINCE DECEASED BY HIS LR'S.
1A. PUSPA W/O VEERAYYA KOCHALAPURMATH,
AGED ABOUT 65 YEARS, OCC. HOUSEHOLD,
R/O. NO.104, SWAMI PLAZA,
DESHAPANDE NAGAR,
HUBBALLI-580029.
1B. SUMA W/O RACHAIAH WARIKALMAT,
AGE. 53 YEARS, OCC. HOUSEHOLD WORK,
R/O. NO.104, SWAMI PLAZA,
DESHAPANDE NAGAR,
HUBBALLI-580029.
1C. GURUPRAKASH S/O VEERAYYA KOCHALAPURMATH,
AGED ABOUT 38 YEARS, OCC. BUSINESS,
R/O. NO.104, SWAMI PLAZA,
Digitally signed
by
VIJAYALAKSHMI VIJAYALAKSHMI
DESHAPANDE NAGAR,
HUBBALLI-580029.
M KANKUPPI M KANKUPPI
Date: 2023.12.07
11:55:34 +0530
... APPELLANTS
(BY SRI. MAHESH WODEYAR, ADVOCATE)
AND:
BALAKRISHNA T. MAGAJIKONDI,
AGE. 48 YEARS, OCC. BUSINESS,
R/O- PLOT NO.18,
BANASHANKARI LAYOUT,
PARASAWADI, KESHWAPUR,
HUBBALLI-580025.
... RESPONDENT
(BY SRI. K.L. PATIL, ADVOCATE)
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NC: 2023:KHC-D:14107
CRL.A No. 100257 of 2022
THIS CRIMINAL APPEAL IS FILED U/S 378(4) OF CR.P.C.,
SEEKING TO SET ASIDE THE ORDER DATED 29.12.2018 PASSED BY
THE JMFC-II COURT, HUBBALLI IN CC NO.1544/2016 FOR THE
PUNISHABLE U/S 138 OF NI ACT AND CONSEQUENTLY RESTORE THE
CC NO.1544/2016 ON THE FILE OF JMFC-II COURT, HUBBALLI.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed praying to set aside the impugned
order dated 29.12.2018 passed in C.C.No.1544/16 by the
JMFC-II Court, Hubballi and consequently restore the said
criminal case.
2. Heard learned counsel for the appellant. The
appellant has died during pendency of this appeal and his
legal representatives were brought on record.
3. Learned counsel for the appellant submits that
the appellant who was complainant before the Trial Court
could not attend to the Court to give evidence as he was
suffering from kidney related problems and he was on
dialysis during the year 2017-18. He further submits that
even the counsel representing the complainant namely Sri
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Rajshekhar P. Ugargol died on 21.06.2018. Therefore,
nobody represented the complainant on the date on which
criminal case was dismissed for none appearance of the
complainant on 29.12.2018. He further submits that there
were bona fide reasons for non appearance of the
complainant and his son who is a GPA holder who was
taking care of his father as he is taking treatment for
kidney related problems. With this, he prayed to allow the
petition and set aside the impugned order dated
29.12.2018 and restore the criminal case.
4. The appellant through his GPA holder who is
son of the appellant has filed a private complaint against
the respondent for offence punishable under Section 138
of the Negotiable Instruments Act, 1881 (hereinafter
referred to as 'N.I.Act', for brevity). The Trial Court
took the cognizance and registered the case against the
respondent in C.C.No.1544/2016 for the offence
punishable under Section 138 of the N.I. Act. The
respondent has appeared through his counsel and plea
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was recorded and case was posted for recording the
complainant evidence. The appellant/complainant was
noted absent on 27.09.2017 till 23.12.2018. Documents
produced reveal that the appellant/complainant was taking
treatment for his kidney related problems in Manipal
Hospital Bengaluru and Suchirayu Hospital Hubballi during
the year 2017-18. The certificate dated 02.03.2020 issued
by the Dr.Chetan Mudrabettu indicates that the
complainant is suffering from T2DM/HTN/CKD-5D, he is
undergoing regular maintenance Hemodialysis since
September 2016 till date, this treatment is life saving for
him. Learned counsel for the appellant submits that the
GPA holder is son of the complainant and he was attending
his father while he was taking treatment and therefore,
could not appear to prosecute the criminal case.
5. On perusal of the said medical record, non
appearance for the complainant and GPA holder who is son
of the complainant in criminal case to lead evidence was
for bona fide reasons. If the impugned order is not set
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aside and criminal case is not restored, the complainant
will be put to injustice.
6. The appellant/complainant has made out
grounds for setting aside the impugned order dated
29.12.2018 and to restore the criminal case. In the result,
the following
ORDER
Appeal is allowed.
The impugned order dated 29.12.2018 passed by the
JMFC-II Court, Hubballi is set aside. The Criminal Case
No.1544/2016 is ordered to be restored.
The legal representatives of the
appellant/complainant who brought on record are
permitted to prosecute the said criminal case representing
the appellant/complainant. Legal representatives of the
appellant/complainant are directed to appear before the
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Trial Court on 02.01.2024 without awaiting any Court
notice.
Sd/-
JUDGE
DSP
CT:BCK
