Sri. H. S. Manjunath vs Veena
2023 Latest Caselaw 7124 Kant

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                                                        NC: 2023:KHC:36550
                                                   CRL.A No. 250 of 2023




                IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                     DATED THIS THE 9TH DAY OF OCTOBER, 2023

                                       BEFORE
                        THE HON'BLE MR JUSTICE S RACHAIAH
                        CRIMINAL APPEAL NO.250 OF 2023 (A)
              BETWEEN:

              SRI. H. S. MANJUNATH,
              AGED ABOUT 49 YEARS,
              R/O NO. 79468, HULLIKATTE COMPLEX,
              KSRTC BUS STAND ROAD,
              NEAR RAGHAVENDRA SCHOOL,
              DAVANAGERE - 577 004.
                                                              ...APPELLANT
              (BY SRI. R. SHASHIDHARA, ADVOCATE)

              AND:

              VEENA,
              W/O LATE K. S. VIJAYAKUMAR,
              MAJOR IN AGE,
Digitally
signed by N   R/O NO. 1724/26,
UMA
Location:     BEHIND JAYLINGESHWARA TEMPLE,
HIGH
COURT OF      PB ROAD, DAVANAGERE - 577 003.
KARNATAKA
                                                            ...RESPONDENT
              (BY SRI. JAVEED S, AMICUS CURIAE)

                     THIS CRIMINAL APPEAL IS FILED UNDER SECTION
              378(4) OF CRIMINAL PROCEDURE CODE PRAYING TO MAY BE
              PLEASED TO A. SET ASIDE THE ORDER PASSED BY THE
              LEARNED    III   ACJ   AND   JMFC    AT   DAVANAGERE      IN
              C.C.NO.5346/2021 DATED 10.10.2022.
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                                                 NC: 2023:KHC:36550
                                            CRL.A No. 250 of 2023




      THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:


                        JUDGMENT

1. Thought the matter is listed for Admission, with the

consent of learned counsel for the respective parties,

taken up for final disposal.

2. Heard Sri. R. Shashidhara, learned counsel for the

appellant and Sri. S. Javeed, learned Amicus Curiae and

perused the material on record.

3. On perusal of the order sheets, it appears that on

18.11.2020, the complaint was registered for the offence

punishable under Section 138 of the Negotiable

Instruments Act by the complainant. The matter was set

down for sworn statement on 11.02.2021. After recording

the sworn statement, the learned Magistrate took

cognizance and registered the case. Thereafter, the matter

was posted for taking steps on 23.03.2021. The Trial Court

NC: 2023:KHC:36550 CRL.A No. 250 of 2023

dismissed the complaint on 10.10.2022 for not taking

steps.

4. It is the submission of learned counsel for the

appellant that steps was taken on 15.11.2021. On

perusal of the order sheet, it appears that the

Endorsement of the Office for having paid the process fee

is on 19.04.2022. On 08.07.2022, one more shara noted

on the order sheet that summons served by RPAD,

addressee "not claimed". Thereafter, on 05.08.2022, the

matter was adjourned to 09.09.2023 and on 09.09.2023,

due to unavoidable circumstances, the learned counsel for

the complainant did not appear before the Trial Court.

Considering the non-representation, the matter was

posted on 10.10.2022. On 10.10.2022, the case was

called out and the case was dismissed for not having taken

steps which is unsustainable. It is further submitted that,

the Trial Court instead of issuing Non-Bailable Warrant,

further directed the complainant to take steps which is

erroneous and the order is liable to be set aside.

NC: 2023:KHC:36550 CRL.A No. 250 of 2023

5. Having heard the learned counsel for the appellant

and also on perusal of the order sheet, it appears that the

Trial Court committed an error. Once the addressee has

not claimed the summons from the Court, it is necessary

to issue Non Bailable Warrant. However, the order sheet

did not disclose the issuance of Non Bailable Warrant

against the accused. Assigning the reasons that the

complainant did not take steps and dismissed the

complaint which appears to be erroneous and the order of

dismissal is required to be set aside.

6. In the light of the observations made above, I

proceed to pass the following:

ORDER

(i) Criminal Appeal is allowed.

(ii) The Order dated 10.10.2022 passed in C.C.

No.5346/2021 by the learned III ACJ and JMFC,

Davanagere, is hereby set-aside.

(iii) The Trial Court is directed to proceed with the

case considering the Order sheet dated

08.07.2022, in accordance with law.

NC: 2023:KHC:36550 CRL.A No. 250 of 2023

(iv) The learned counsel for the respective parties

are directed to appear before the Trial Court on

16.11.2023 without further intimation.

(v) The assistance rendered by the learned Amicus

Curiae is appreciated and the said appreciation

is placed on record.

Sd/-

JUDGE

SNC

CT: BHK