Karnataka High Court
Sri S M Shah vs Sri S Prakash on 16 November, 2023
Bench: G Basavaraja
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NC: 2023:KHC:40779
CRL.A No. 1631 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE G BASAVARAJA
CRIMINAL APPEAL NO. 1631 OF 2019
BETWEEN:
SRI. S. M. SHAH,
S/O LATE S.A. LATHEEF,
AGED ABOUT 70 YEARS
R/AT FLAT NO.02,
BRIGADE HERITAGE,
COOKSON ROAD, RICHARDS TOWN,
BANGALORE - 560 084.
...APPELLANT
(BY SRI. K.P. BHUVAN, ADVOCATE)
AND:
SRI. S. PRAKASH,
MANAGING PARTNER/PARTNER,
BRINDA PROPERTIES,
NO.80, 5TH "A" CROSS,
Digitally signed
21ST MAIN ROAD, MCHS LAYOUT,
by SANDHYA S IAS OFFICERS COLONY,
Location: High
Court of BTM 2ND STAGE, BANGALORE - 560 076.
Karnataka ...RESPONDENT
(RESPONDENTS - NOTICE SERVED AND UNREPRESENTED)
THIS CRL.A IS FILED U/S.378(4) OF CR.P.C PRAYING TO
(a) SET ASIDE THE ORDER DATED 01.04.2019 PASSED IN
C.C.NO.51839/2018 ON THE FILE OF THE XIV ADDITIONAL
CHIEF METROPOLITAN MAGISTRATE, MAYO HALL UNIT,
BENGALURU.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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CRL.A No. 1631 of 2019
JUDGMENT
The complainant/appellant has preferred this appeal
against the order passed by the XIV ACMM, Bengaluru as
the case was dismissed for non-prosecution.
2. The rank of the parties in this appeal are
referred in the same rank as referred by the Trial court.
3. The complainant has filed a complaint against
the accused for commission of offence under Section 138
of N.I. Act. After taking cognizance, a case was registered
in C.C.No.51839/2018 and plea was recorded.
Examination-in-chief of PW.1 was recorded. When the
case was posted for cross-examination of the complainant,
he remained absent. Hence, trial Court has passed the
impugned order on 01.04.2019, which reads as under:
"Case called out.
Complainant and accused are absent.
E/P filed by accused. No representation of
complainant.
Sri. MGS Advocate for accused prays for dismissal
of the complaint for non appearance of
NC: 2023:KHC:40779
CRL.A No. 1631 of 2019
complainant. Perused the contents of the order
sheet. Case is passed over as there are no reasons
for passing the case again.
Sd/- 01/04
Case called out again at 12.05 PM parties called
out. Absent. No representation for complainant.
Case is again passed over.
Sd/- 01/04
Case called out. Again at 1.00 P.M. parties called
out. Absent. No representation to complainant.
Heard Sri. MGS Adv for accused. Case is again
passed over.
Sd/- 01/04
Case called again at 1.35 PM. Parties called out.
Absent. No representation for complainant. Sri.
MGS advocate for accused prays for dismissal of
the case for non appearance of the complainant
for prosecuting the case. He further submits that
even cost was also not paid as ordered. Heard.
Perused the contents of the order sheet. It is
noticed that the complainant remained absent
continuously and even there has been no
representation also for the complainant. On the
last date of hearing when the case was posted for
appearance of the complainant for cross
examination as finally last chance, the complainant
remained absent and even there was no
representation though this case was thrice on the
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CRL.A No. 1631 of 2019
said date. However though there was no
representation in the interest of justice this court
was pleased to grant one more opportunity to the
complainant to appear before the court to proceed
with the matter as finally last chance if interested
in prosecuting this case on cost of Rs.300/- in
favour of the accused. It was also made clear that
no further opportunity will be given and
accordingly matter was posted to today for
appearance of the complainant for cross
examination as finally last chance. In spite of the
said order today also the complainant remained
absent and even there is no representation for
complainant though this case is called forth time
today. Even the complainant has not paid the cost
as ordered on the last date of hearing. Absolutely
there are no reasons to adjourn the case again for
the same purpose. It appears that the complainant
is not interested in prosecuting this case Since the
complainant has not opted to appear before the
court for cross examination, the case has to be
dismissed for non appearance of the complainant
and for non prosecution. Hence this court proceed
to pass the following.....
ORDER
Acting U/s. 256(1) of Cr.PC., case is
dismissed for non-prosecution i.e., for non
appearance of the complainant for cross
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CRL.A No. 1631 of 2019
examination. Consequently accused is acquitted
for the offence punishable U/s 138 of N.I. Act.
Bail bond of the accused stands cancelled. CS
of Rs.2,500/- deposited by the accused is
ordered to be refunded in his favour through
account payee cheque with proper identification
in accordance with law if refund voucher is
furnished.
File is ordered to be closed."
4. Learned counsel for the complainant has argued
that age of the complainant was 70 years at the time of
passing the impugned order. Further, it is submitted that
complainant was suffering from viral fever and same was
informed to his counsel and as his counsel was also held
up in another Court, he could not appear before the Court.
5. Considering the facts and circumstances of the
case and the reasons assigned by the complainant, in the
interest of justice, it is just and proper to provide one
more opportunity to the complainant to prosecute his
case. Hence, I proceed to pass the following:
NC: 2023:KHC:40779
CRL.A No. 1631 of 2019
ORDER
1. The appeal is allowed;
2. The impugned order dated 01.04.2019 in
C.C.No.51839/2018 passed by the Court of
XIV ACMM, Bengaluru is hereby set aside;
3. C.C.No.51839/2018 on the file of XIV ACMM,
Bengaluru shall be restored;
4. Appellant/complainant is directed to appear
before the trial Court on 06.12.2023 without
seeking any further notice from the trial
Court;
5. The trial Court is directed to secure the
presence of the accused/respondent and
proceed with the case in accordance with
law;
6. Registry is directed to send the intimation
along with copy of this judgment to the
concerned trial Court.
Sd/-
JUDGE
PGG
CT: BHK
