Karnataka High Court
Poojya Shree Mahantappagalavar ... vs Shivappa Mallappa Patted on 12 June, 2023
Bench: Anil B Katti
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CRL.A No. 100543 of 2022
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 12TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR JUSTICE ANIL B KATTI
CRIMINAL APPEAL NO. 100543 OF 2022 (A-)
BETWEEN:
POOJYA SHREE MAHANTAPPAGALAVAR URBAN
CO-OPERATIVE SOCIETY LTD.,
HUBBALLI
REP BY ITS MANAGER
SHRI SHASHIDHAR HIREMATH
AGE. 58 YEARS,
...APPELLANT
(BY SRI. RAJASHEKAR R. GUNJALLI,ADVOCATE)
AND:
SHIVAPPA MALLAPPA PATTED
AGE. MAJOR,
Digitally
signed by J R/O. AT POST. ROTTIGAWAD
MAMATHA
J
Date:
TQ. KUNDAGOL
MAMATHA 2023.06.15
10:53:39 - DIST. DHARWAD-580001
0700
...RESPONDENT
(BY SRI. SADIQ N. GOODWALA, ADVOCATE)
THIS CRIMINAL APPEAL IS FILED U/S 378(4) OF CR.P.C.,
SEEKING TO ALLOW THIS CRIMINAL APPEAL BY SETTING ASIDE THE
JUDGMENT AND ORDER OF DISMISSAL/ACQUITTAL DATED
08.07.2022 PASSED IN CC NO.1005/2019 PASSED BY THE 1 ST
ADDL SR CIVIL JUDGE AND JMFC AT HUBBALLI OFFENCE
PUNISHABLE U/S 138 OF NI ACT BY RESTORING CASE ON ITS FILE.
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CRL.A No. 100543 of 2022
THIS CRIMINAL APPEAL, COMING ON FOR FURTHER ORDERS,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Appellant/complainant feeling aggrieved by the order of
trial Court on the file of I Addl. Sr. Civil Judge and JMFC,
Hubballi, dated 08.07.2022 filed this appeal.
2. Heard the arguments of both sides.
3. Appellant/complainant has filed private complaint
under Section 200 Cr.P.C. against accused under Section 138 of
the Negotiable Instruments Act. The trial Court by its order
dated 08.07.2022 dismissed the complaint for non-prosecution.
It appears that on 15.07.2022 application was filed seeking
restoration of the complaint which was dismissed for non-
prosecution. The trial Court by order dated 27.07.2022
dismissed the said application.
4. Complainant filed revision petition on the file of
Addl. District and Sessions Court sitting at Hubballi in
Crl.R.P.No.5035/2022 and the same came to be withdrawn with
liberty to file criminal appeal before this Court.
CRL.A No. 100543 of 2022
5. The order-sheet maintained by trial Court would go
to show that accused appeared before the Court on 26.09.2019
and he was released on bail. Thereafter, matter came to be
adjourned from time to time due to Covid-19 and absence of
accused, for reporting settlement. The plea of accused came to
be recorded on 29.03.2022 and the matter came to be posted
for evidence on 11.05.2022. On that day, complainant was
present. Accused remained absent. Therefore, warrant came
to be issued and matter was adjourned to 14.06.2022. On the
said day, NBW was reissued with notice to surety. On
08.07.2022, NBW was recalled but complainant remained
absent. The trial Court taking note of absence of complainant
and his counsel on the said day, proceeded to dismiss the
complaint for non-prosecution.
6. It is pertinent to note that the date fixed on
08.07.2022 was for return of NBW issued against accused and
notice to surety. The matter was not posted for recording
evidence of complainant. The presence of complainant before
the Court at that point of time was not necessary, particularly
when he is represented through counsel. On the said day,
accused was present and NBW issued against him came to be
CRL.A No. 100543 of 2022
recalled and the matter was kept by. When the case was called
at 2.15 p.m., complainant and his counsel remained absent.
Hence, the trial Court proceeded to dismiss the complaint for
non-prosecution.
7. The above referred proceedings recorded in the
order-sheet by trial Court would go to show that complainant
was not at fault and his presence was not absolutely necessary
for proceeding in the matter, since the NBW issued against the
accused was pending. Therefore, under the given
circumstances, the trial Court should have given reasonable
opportunity to the complainant to prosecute the case. In the
given set of facts and circumstances of the case, it cannot be
stated that the complainant is a person not interested in
prosecuting the case.
8. It is true that private complaint is filed on
08.10.2013 and sufficient time has been consumed in securing
presence of accused before the Court. Accused has appeared
before the trial Court on 26.09.2019. Thereafter, the matter
came to be adjourned from time to time for taking steps,
absence of accused, so also due to Covid reason. Hence, under
CRL.A No. 100543 of 2022
these circumstances, in my opinion, opportunity is required to
be given to the complainant to prosecute the case. Further,
the said opportunity is subject to payment of cost of Rs.2,000/-
payable to the accused. Consequently, proceed to pass the
following:
ORDER
Appeal filed by the appellant/complainant is hereby
allowed.
The order of trial Court on the file of I Addl. Sr. Civil
Judge and JMFC, Hubballi, in C.C.No.1005/2019 dated
08.07.2022 is hereby set aside.
The parties are now represented through their learned
counsel and in order to expedite disposal of the case, parties
are directed to appear before the trial Court on 13.07.2023
without there being any notice to receive further instruction
from the trial Court.
The complainant has to pay costs of Rs.2,000/- to the
accused.
CRL.A No. 100543 of 2022
The trial Court is directed to dispose of the case on merits
as expeditiously as possible.
(Sd/-)
JUDGE
JM
