P R Nandakumar vs Smt Leny Soloman
2023 Latest Caselaw 7828 Kant

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                                                          NC: 2023:KHC:41348
                                                      CRL.A No. 1823 of 2017




                     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                       DATED THIS THE 18TH DAY OF NOVEMBER, 2023

                                           BEFORE
                          THE HON'BLE MR JUSTICE G BASAVARAJA
                             CRIMINAL APPEAL NO.1823 OF 2017
                   BETWEEN:

                   P.R. NANDAKUMAR,
                   S/O P.V. RAGHAVAN,
                   SHALOM TAILORS,
                   GILGAL COMPLEX, SIDDAPURA,
                   VIRAJPET TALUK
                   KODAGU DISTRICT - 571 218.
                                                                ...APPELLANT
                   (BY SRI NIHAL ABDUL RAHIMAN, ADVOCATE FOR
                       SRI. SACHIN B.S., ADVOCATE)

                   AND:

                   SMT. LENY SOLOMAN,
                   W/O SOLOVAN, ST.ANNE'S CONVENT,
                   SIDDAPURA,
Digitally signed
by SANDHYA S       VIRAJPET TALUK
Location: High
Court of           KODAGU DISTRICT - 571 218.
Karnataka
                                                              ...RESPONDENT
                   (RESPONDENT IS SERVED & UNREPRESENTED)

                        THIS CRL.A. IS FILED U/S.378(4) OF CR.P.C PRAYING TO
                   SET ASIDE THE IMPUGNED JUDGMENT DATED 09.08.2017
                   PASSED BY THE CIVIL JUDGE AND J.M.F.C., VIRAJPET IN
                   C.C.NO.612/2016 FOR THE OFFENCE P/U/S 138 OF N.I. ACT;
                   I.A.NO.1/2017 FOR CD IN FILING; AND ETC.

                       THIS APPEAL, COMING ON FOR HEARING, THIS DAY, THE
                   COURT DELIVERED THE FOLLOWING:
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                                                NC: 2023:KHC:41348
                                           CRL.A No. 1823 of 2017




                           JUDGMENT

The complainant/appellant has preferred this appeal

against the order dated 09th August, 2017 passed in CC No.612

of 2016 by the Civil Judge and JMFC, Virajpet (for short

hereinafter referred to as the "trial Court") by which order, the

trial Court has dismissed the complaint for non-prosecution.

2. For the sake of convenience, the parties in this

appeal are referred to with their status and rank before the trial

Court.

3. The complainant/appellant has filed complaint

under Section 200 of Code of Criminal Procedure against the

accused for commission of offence punishable under Section

138 of Negotiable Instruments Act, 1881. The trial Court has

taken cognizance for commission of the alleged offence and

ordered to issue summons. The summons was not issued as

the complaint has not paid the process fee. Hence, on 09th

August, 2017, the trial Court has passed the impugned order,

which reads thus:

"Case called at 3.00 pm. Complainant absent. No representation in spite of sufficient opportunities.

NC: 2023:KHC:41348 CRL.A No. 1823 of 2017

Hence, Complaint is dismissed for non-prosecution."

4. This Court has secured the trial Court records. I

have examined the records placed before me. That on 30th

November, 2016, the Advocate for complainant has filed

process memo of Re.1/- towards issuance of Non-bailable

warrant to the accused. Another memo dated 17th January,

2017 reveals that the advocate for the complainant has filed

process memo by paying Re.1/- towards issuance of warrant to

the accused. Another process memo dated 28th March, 2017.

reveals that for issuance of summons, the complaint has paid

an amount of Re.1/-. The concerned officials have also put

their seal with signature that they have received the process

fee on the abovesaid dates. Though the trial Court has

received the process fee and the concerned staff have endorsed

on the order sheet "PF not paid". Hence, summons was not

issued. The learned Magistrate has failed to verify the records

before passing the impugned order. Though the complainant

has furnished process fee for three times, the trial Court has

not issued summons to the accused and due to the mistake of

the Court, the complaint is dismissed by the trial Court without

application of mind. Hence, I proceed to pass the following:

NC: 2023:KHC:41348 CRL.A No. 1823 of 2017

ORDER

1. Appeal allowed;

2. Order dated 09th August, 2011 passed in CC

No.612 of 2016 by Civil Judge and JMFC,

Virajpet is set aside;

3. CC No.612 of 2016 is restored to file;

4. The trial Court is directed to issue summons to

the accused without insisting process fee as the

complaint has paid the process fee three times;

5. The trial Court is also directed to call for

explanation from the delinquent employee who

has falsely endorsed on the order sheet as "PF

not paid";

6. The complainant is directed to appear before

the trial Court on 13th December, 2023

without seeking further notice from the trial

Court in this regard;

7. The trial Court is directed to dispose of the

matter as expeditiously as possible, as the

matter is of the year 2016;

NC: 2023:KHC:41348 CRL.A No. 1823 of 2017

8. Registry is directed to send the copy of this

Judgment along with trial Court records to the

trial Court forthwith.

Sd/-

JUDGE

LNN