Karnataka High Court
Mr Nagaraju K vs Mr H P Ramesh on 7 February, 2024
-1-
CRL.A No. 2179 of 2023
NC: 2024:KHC:5135
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MS JUSTICE J.M.KHAZI
CRIMINAL APPEAL NO.2179 OF 2023
BETWEEN:
MR NAGARAJU K
S/O DODDASIDDAIAH,
AGED ABOUT 42 YEARS,
R/AT KANCHANAHALLI VILLAGE,
SATNUR HOBLI, KANAKAPURA TALUK
RAMANGARA DISTRICT - 560 063.
...APPELLANT
(BY SMT. KALPANA P V, ADVOCATE)
AND:
MR H P RAMESH
S/O LATE PUTTANNA,
AGED ABOUT 49 YEARS,
R/A HONNANAYAKANAHALLI,
CHIKKAARASIKERE HOBLI
MADDUR TALUK
Digitally signed MANDYA DISTRICT - 571 401.
by REKHA R
...RESPONDENT
Location: High
Court of
Karnataka THIS CRL.A IS FILED UNDER SECTION 378(4) OF CR.PC
PRAYING TO a) SET ASIDE THE ORDER OF DISMISSAL PASSED
ON 19.09.2023 IN C.C.NO.1544/2019 BY THE PRINCIPAL CIVIL
JUDGE AND J.M.F.C, MALAVALLI; b) REMAND THE CASE TO
THE LOWER COURT BY PROVIDE THE OPPORTUNITY FOR THE
APPELLANT TO PROSECUTE THE CASE BEFORE THE LOWER
COURT; c) GRANT SUCH OTHER ORDER/RELIEF AS THIS
HON'BLE COURT DEEMS FIT IN THE INTEREST OF JUSTICE AND
EQUITY.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
-2-
CRL.A No. 2179 of 2023
NC: 2024:KHC:5135
JUDGMENT
Being aggrieved by the dismissal for default of the
complaint filed by him under Section 200 Cr.P.C against
the respondent/accused for the offence punishable under
Section 138 of Negotiable Instrument (for short "N.I.
Act"), appellant who is complainant has filed this appeal
under Section 378(4) of Cr.P.C.
2. For the sake of convenience the parties are
referred to by their rank before the trial Court.
3. It is the case of the complainant that he and
accused are known to each other since several years.
Accused availed financial assistance in a sum of
Rs.2,00,000/-. However, he failed to repay the same and
on request and demand by the complainant, issued a
cheque dated 19.12.2018. However, when presented the
cheque, it was dishonoured with endorsement "Funds
insufficient and drawers signature differs". When this fact
was brought to the notice of accused, he requested to re-
present the same. Once again, the subject cheque was
dishonoured for the same reason. After issuing legal notice
NC: 2024:KHC:5135
and on failure of accused to pay the amount due under
cheque, complaint is filed.
4. The trial Court took congnizance and issued
summons to the accused. However, accused evaded
service of summons and on 19.09.2023, the trial Court
has dismissed the complaint for non-prosecution. On that
day, complainant could not attend the Court, as he was
suffering from ill health and hence, the appeal.
5. Since the accused had not appeared before the
trial Court, in this appeal notice to him is dispensed with.
6. Heard and perused the record.
7. Thus, complainant filed the complaint in
question against the accused alleging that accused
borrowed hand loan of Rs.2,00,000/- and issued cheque
towards repayment of the same. However, when
presented for encashment, it was dishonoured for want of
sufficient funds and also signature of the drawer's differs.
Even after issue of legal notice, the accused failed to pay
the amount due and without any alternative complaint is
NC: 2024:KHC:5135
filed. However, the trial Court has dismissed the complaint
for default on the ground that even after expiry of five
years, the complainant was not diligent in securing the
presence of accused.
8. From the order sheet, it is evident that the
sworn statement of the complainant was recorded on
04.04.2019, cognizance was taken and summons was
issued to the accused. From 04.04.2019 to 19.09.2023,
number of times summons was issued and re-issued to the
accused. Even after five years, the presence of accused
was not secured and ultimately the trial Court has
dismissed the complaint for non-prosecution. However, in
the order sheet what actually happened to the summons
sent to the accused is not forthcoming and on every
hearing date the stage is noted as summons to accused.
In the proceedings, whether the summons was actually
sent, if so whether the concerned police have returned the
summons and why it is not served, etc., is not
forthcoming. As the order sheet lack these details, it is not
possible to ascertain whether the summons could not
NC: 2024:KHC:5135
serve on account of negligence on the part of complainant
or for some other reason. It is the responsibility of bench
clerk to note these details so that liability could be fixed on
the complainant, if he is not diligent in prosecuting the
case. Anyhow, the fact remains that the complaint is
dismissed for non-prosecution and the case is not decided
on merit.
9. In the above facts and circumstances, this
Court is of the considered opinion that a reasonable
opportunity be given to the complainant to secure the
presence of accused and proceed with the matter. If the
accused is intentionally evading process of the Court, the
complainant is at liberty to convince the Court to take
coercive steps against him.
10. For the above reasons, this Court is of the
considered opinion, the matter requires remand to the trial
Court for disposal on merit after providing reasonable
opportunity to both parties and accordingly the following:
NC: 2024:KHC:5135
ORDER
(i) Appeal is allowed.
(ii) The impugned order dated 19.09.2023 passed
in C.C.No.1544/2019 on the file of Civil Judge &
JMFC., Malavalli is set aside.
(iii) The complainant is directed to appear before
the trial Court on 26.02.2024 without waiting
for further notice from the trial Court and take
necessary steps to secure the presence of
accused and prosecute the case diligently.
Sd/-
JUDGE
RR
