Karnataka High Court
Shri Siddivinayak Co-Op Credit ... vs Shri Shivamoggi S/O Maruti ... on 14 March, 2023
Bench: Anil B Katti
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CRL.A No. 100068 of 2023
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 14TH DAY OF MARCH, 2023
BEFORE
THE HON'BLE MR JUSTICE ANIL B KATTI
CRIMINAL APPEAL NO.100068 OF 2023
BETWEEN:
SHRI SIDDIVINAYAK CO-OP CREDIT SOCIETY LTD,
NAGARMUNNOLI, TQ. CHIKODI,
REPRESENTED BY ITS SECRETARY,
SHRI SHIVAGONDA S/O. GURUSIDDA DALAWAI,
AGE. 37 YEARS,OCC. SECRETARY,
Digitally signed
by J MAMATHA R/O NAGARAMUNNOLI, TQ. CHIKODI,
Location: HIGH
J COURT OF
KARNATAKA, DIST. BELAGAVI-591021. ...APPELLANT
MAMATHA DHARWAD
BENCH,
DHARWAD.
Date: 2023.03.15
12:44:40 +0530 (BY SHRI SANTOSH S. HATTIKATAGI, ADVOCATE)
AND:
SHRI SHIVAMOGGI S/O. MARUTI PATTEWALA,
AGE. 52 YEARS, OCC. AGRICULTURE,
R/O. NAGARAMUNNOLI, TQ. CHIKODI,
DIST. BELAGAVI-591021. ...RESPONDENT
(NOTICE TO RESPONDENT IS DISPENSED WITH)
***
THIS CRIMINAL APPEAL IS FILED U/S 378 (4) CR.P.C.,
SEEKING TO CALL FOR RECORDS AND SET ASIDE THE ORDER
/JUDGMENT PASSED BY THE COURT OF PRL. CIVIL JUDGE AND
JMFC, CHIKKODI IN CC NO. 1514/2022 DATED 06.10.2022
DISMISSING THE COMPLAINT FOR NON PROSECUTION FOR
THE OFFENCE PUNISHABLE U/S 138 OF N.I ACT.
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CRL.A No. 100068 of 2023
THIS APPEAL COMING ON FOR ORDERS AND THE SAME
HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON
06.03.2023, THIS DAY, THE COURT, DELIVERED THE
FOLLOWING:
JUDGMENT
Appellant/complainant feeling aggrieved by dismissal of
the complaint by Prl. Civil Judge and JMFC, Chikodi, in
C.C.No.1514/2022 dated 06.10.2022 has preferred the present
appeal.
2. Parties to the appeal are referred with their ranks as
assigned in the trial Court for the sake of convenience.
3. The factual matrix leading to the case of
complainant can be stated in nut-shell to the effect that the
complainant filed P.C.No.85/2020 for the offence punishable
under Section 138 of the Negotiable Instruments Act (for short
'the N.I.Act'), on the allegation that cheque bearing No.002552
dated 12.12.2019 for Rs.2 lakhs including interest issued by
the accused in discharge of lawful debt was bounced for want of
sufficient fund in the account of accused vide endorsement of
the bank dated 16.12.2019. The demand notice dated
21.12.2019 was duly served to accused on 24.12.2019. The
CRL.A No. 100068 of 2023
accused has neither paid the cheque amount nor replied to the
said notice. Therefore, complaint came to be filed.
4. This Court by order dated 06.03.2023 has ordered
to dispense with notice to the respondent, since the complaint
came to be dismissed before appearance of the accused.
5. Heard the arguments.
6. Complainant has filed the complaint under Section
200 of Cr.P.C. for the offence punishable under Section 138 of
the N.I.Act, on 06.02.2020. The order-sheet of the trial Court
would go to show that the sworn statement of the complainant
came to be recorded on 07.07.2022 as CW-1 and the document
as per Ex.C.1 to Ex.C.6 came to be marked. The trial Court by
order dated 07.07.2022 has ordered for registering the case
against accused for the offence punishable under Section 138
of the N.I. Act. The matter was posted on 06.10.2022 for
appearance of the accused.
7. The order-sheet dated 06.10.2022 would go to
show that there is an office endorsement that PF and RPAD
cover was not furnished. The trial Court after noting the
absence of complainant and learned counsel, as there was no
CRL.A No. 100068 of 2023
representation in the case, has recorded finding that
complainant is not interested to further prosecute the case and
as a result dismissed the complaint for non-prosecution.
8. The dismissal of complaint for non-appearance of
complainant is in terms of Section 256(1) of Cr.P.C., which
has the result of acquitting the accused for the offence
punishable under Sections 138 of N.I.Act. Whether the
absence of complainant before the Trial Court when he was
represented by the counsel can be termed as person not
interested in prosecuting the case? In this context, it is
useful to refer judgment of Hon'ble Apex Court in
Associated Cement Company V/s. Keshavanand
reported in (1998) 1 SCC 687. The proviso to Section 56 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, he 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 cause of administration of criminal justice. In
CRL.A No. 100068 of 2023
another judgment of Apex Court in Azeem V/s. Venkatesh
and another reported in (2002) 7 SCC 726, it has been
held that dismissal of the complaint on account of one
singular default in appearance on the part of the complainant
as a very strict and unjust attitude, resulting in failure of
justice. In view of principles enunciated in both the decision
referred above, it is evident that effect to dismissal in
default, the Magistrate is suppose to exercise his discretion
with care and caution by clearly mentioning in the order that
there was no reason for him to think it proper to adjourn the
hearing of the case for some other day.
9. It is true the complainant should have furnished PF
and RPAD cover for issuance of summons to the accused as
ordered by the trial Court on 07.07.2022. It appears that the
same was not complied by complainant as per the endorsement
found on the order-sheet dated 06.10.2022. When once the
trial Court takes cognizance of the offence punishable under
Section 138 of the N.I.Act and ordered for issuance of
summons to the accused, then the procedure contemplated in
terms of Section 200 of Cr.P.C. has to be followed. The trial
Court should have given reasonable opportunity for the
CRL.A No. 100068 of 2023
complainant to furnish PF and RPAD cover for issuing summons
to the accused. The complainant-Society has granted loan to
the accused and the accused is liable to pay the said amount
with interest from the date of availing loan i.e., on 12.12.2016
as per the agreed rate of interest which was supposed to be
repaid within two years on or before 12.12.2018. The grant of
loan by Society is out of public money kept in the Society.
Therefore, under these circumstances, it cannot be said that
complainant is not interested in prosecuting the case. It may
be true that the complainant/appellant must not have given PF
and RPAD cover for issuing summons in compliance of the
order of trial Court dated 07.07.2022. The right of appellant to
prosecute the case cannot be shut down in the manner adopted
by trial Court. The trial Court should have adopted pragmatic
approach before proceeding to pass the impugned order under
appeal. The order of the trial Court suffers from natural justice,
since no reasonable opportunity was given to comply the order
of trial Court dated 07.07.2022. Therefore, interference of this
Court is required to give fair opportunity to the complainant to
proceed with the matter.
CRL.A No. 100068 of 2023
10. Consequently, proceed to pass the following:
ORDER
Appeal filed by the appellant/complainant is hereby
allowed,
The order passed by the Prl. Civil Judge and JMFC,
Chikkodi, in C.C.No.1514/2022 dated 06.10.2022 is
hereby set aside,
The complainant is hereby directed to appear before
the trial Court on 10.04.2023 to receive further
instructions from the trial Court.
(Sd/-)
JUDGE
Jm/-
