Karnataka High Court
The Mananging Director, Indian ... vs Pasha Mutujya Shekh on 14 June, 2023
Bench: Anil B Katti
-1-
CRL.A No. 100300 of 2020
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 14TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR JUSTICE ANIL B KATTI
CRIMINAL APPEAL NO. 100300 OF 2020 (A-)
BETWEEN:
THE MANANGING DIRECTOR,
INDIAN CANE POWER LTD UTTUR,
TQ. MUDHOL, DISTRICT. BAGALKOT,
REP. BY ITS MANAGING DIRECTOR
NOW AUTHORIZED OFFICER,
SRI.RAJAKUMAR S. KALLIGUDDI,
AGE. 38 YEARS, OCC. SERVICE ICPL,
R/O. UTTUR, TQ. MUDHOL,
DISTRICT. BAGALKOT,
PIN. 571329.
...APPELLANT
Digitally
(BY SRI. BAHUBALI N KANABARGI, ADVOCATE)
signed by J
MAMATHA
J
MAMATHA Date:
AND:
2023.06.19
14:44:23 -
0700 PASHA MUTUJYA SHEKH
AGE. 53 YEARS, OCC. CONTRACTOR OF
HARVESTING AND TRANSPORTING,
R/O. KARI, TQ. DHARUR,
DISTRICT. BEED, STATE MAHARASHTRA,
PIN. 445001.
...RESPONDENT
(BY SRI. B. C. JNANAYYASWAMI, ADVOCATE)
-2-
CRL.A No. 100300 of 2020
THIS CRIMINAL APPEAL IS FILED U/S 378(4) OF CR.P.C.,
SEEKING TO SET ASIDE ORDER OF DISMISSAL OF
COMPLAINT AND ACQUITTED ACCUSED DATED 17.01.2020 IN
C.C.NO.445/2014 ON THE FILE OF PRL. SENIOR CIVIL JUDGE,
MUDHOL, REGISTERED FOR THE OFFENCES PUNISHABLE
UNDER SECTION 138 OF NEGOTIABLE INSTRUMENTS ACT,
AND RESTORE THE COMPLAINT ON ITS FILE.
THIS CRIMINAL APPEAL, COMING ON FOR ADMISSION,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Appellant/Complainant feeling aggrieved by judgment of
order passed by Prl. Senior Civil Judge, Mudhol in
CC.No.445/2014, dated 17.1.2020, dismissing the complaint
for non-prosecution, preferred this appeal.
2. Heard the arguments of both sides.
3. Appellant/complainant filed Private complaint under
Section 200 of Cr.P.C. for the offence punishable under Section
138 of N.I.Act in PCR.No.758/2013. The trial Court on being
prima facie satisfied of all the material placed on record, took
cognizance of offence and ordered to issue process by order
dated 5.8.2014. Thereafter, complainant has taken steps to
secure presence of the accused before the Court. However,
NBW issued against the accused returned un-executed. The
trial Court by taking note of the absence of complainant and
CRL.A No. 100300 of 2020
counsel on 17.1.2020 proceeded to dismiss the complaint for
non-prosecution.
4. On careful perusal of the order sheet maintained by
the trial Court, it would go to show that the trial Court after
being satisfied due service of summons to accused, by order
dated 31.1.2015 ordered to issue NBW against accused. On
number of occasions, NBW issued against the accused came to
be returned unexecuted or some time, NBW issued was not
returned. There was no any fault of complainant in prosecuting
the case. When the trial Court found that summons is served to
accused then necessary steps would have been taken to secure
the presence of accused before the Court. It is pertinent to note
that on 12.12.2019 NBW returned un-executed. On the next
date of hearing, on 14.1.2020, the trial Court for the first time
recorded in order sheet for orders on maintainability of
complaint. Thereafter, on 17.1.2020 proceeded to dismiss the
complaint for non-prosecution, as the complainant did not show
interest to secure the accused by assisting the police for
serving NBW issued against the accused.
CRL.A No. 100300 of 2020
5. When once the proceedings takes place in terms of
Section 138 of the N.I.Act, which is triable as summons case,
then the procedure contemplated in terms of Chapter XX of
Criminal Procedure Code from Sections 251 to 259 has to be
followed. Whether the absence of complainant before trial
Court on two occasions who was represented by counsel can be
termed as a person not interested in prosecuting the case.?
6. In this context of the matter, it is useful to refer to
the judgment of Hon'ble Apex Court in ASSOCIATED CEMENT
COMPANY VS. KESHAVANAND [(1998) 1 SCC 687],
wherein it has been held that
"The proviso 256 of Cr.P.C., though
affords some deterrence against dilatory
tactics on the part of the complainant, who set
the law into motion through his complaint, but
at the same time, it does not mean that if the
complainant is absent, the Court has duty to
acquit the accused. It has been further held
in the said judgment that the discretion under
Section 256 of Cr.P.C., must be exercised
judicially and fairly without impairing the
cause of administration of criminal justice."
CRL.A No. 100300 of 2020
In view of principle enunciated in the above referred judgment,
it is evident that effect of dismissal in default, the Magistrate is
suppose to exercise his discretion with care and caution by
clearly mentioning in the order sheet that there was no reason
for him to think it proper to adjourn the hearing of the case for
some other day.
7. In the present case, on the very same address
shown in the complaint, complainant has taken steps and
warrant was issued. However, the NBW issued against the
accused returned unexecuted. Indisputably, on the very same
address given in the cause title of the complaint, notice has
been served and accused has appeared through counsel.
Hence, under these circumstances, it cannot be termed that
complainant is a person not interested in prosecuting the case.
8. In view of reasons referred above, opportunity is
required to be given to complainant to prosecute the complaint.
Therefore, for the said purpose interference of this Court is
required. Consequently, proceed to pass the following:
CRL.A No. 100300 of 2020
ORDER
Appeal filed by appellant/complainant is hereby
allowed.
The order of trial Court on the file of Prl. Senior Civil
Judge, Mudhol, in CC.No.445/2014, dated 17.1.2020 is
hereby set aside.
Parties to this appeal have appeared in this case
and they have represented through their counsel, to
expedite further process, they are directed to appear
before the trial Court on 12.7.2023 without there being
any further notice.
Appellant/complainant shall pay costs of Rs.2,000/-
payable to accused. Thereafter, the trial Court is directed
to dispose of the case in accordance with law as
expeditiously as possible.
(Sd/-)
JUDGE
VB
