The Managing Director, Raitar Sahakari ... vs Baburao S/O Ganapati Karadakar
2024 Latest Caselaw 3955 Kant

Karnataka High Court

The Managing Director, Raitar Sahakari ... vs Baburao S/O Ganapati Karadakar on 8 February, 2024

Author: S.Vishwajith Shetty

Bench: S.Vishwajith Shetty

                                       -1-
                                              NC: 2024:KHC-D:2753
                                              CRL.A No. 100167 of 2019




              IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                    DATED THIS THE 8TH DAY OF FEBRUARY, 2024

                                     BEFORE
                THE HON'BLE MR JUSTICE S.VISHWAJITH SHETTY
                    CRIMINAL APPEAL NO. 100167 OF 2019 (A)
             BETWEEN:

             THE MANAGING DIRECTOR,
             RAITAR SAHAKARI SAKKARE KARKHANE NIYAMIT,
             RANNANAGAR, TIMMAPUR, TQ. MUDHOL,
             DISTRICT: BAGALKOTE.
             REPRESENTED BY ITS MANAGING DIRECTOR RSSKN,
             MALLIKARJUN S/O. DODDNAIK MALLUR,
             AGE: 51, OCC. MANAGING DIRECTOR RSSKN,
             R/O. RANNANAGAR, TIMMAPUR, TQ. MUDHOL,
             DIST. BAGALKOTE.
                                                       ...APPELLANT
             (BY SRI SRINIVAS B. NAIK, ADVOCATE)

             AND:

             BABURAO S/O. GANAPATI KARADAKAR,
Digitally    AGE: MAJOR, OCC. CONTRACTOR,
signed by    R/O. JAGIRMOHA, AT POST: CHONDI,
SUJATA       TQ. DHARUR, DISTRICT: BEED,
SUBHASH
PAMMAR       STATE MAHARASHTRA-431124.
Date:                                                   ...RESPONDENT
2024.02.14
17:02:54          THIS CRIMINAL APPEAL IS FILED U/S 378(4) OF CR.P.C.
+0530
             SEEKING TO SET ASIDE THE ORDER OF DISMISSAL OF
             COMPLAINT FOR NON PROSECUTION DATED 04.01.2019 IN
             C.C.NO.124/2013 ON THE FILE OF THE ADDL. SENIOR CIVIL
             JUDGE AND JMFC COURT, MUDHOL, REGISTERED FOR THE
             OFFENCES P/U/S 138 OF NEGOTIABLE INSTRUMENTS ACT,
             AND RESTORE THE COMPLAINT ON ITS FILE.

                  THIS APPEAL, COMING ON FOR ORDERSD, THIS DAY,
             THE COURT DELIVERED THE FOLLOWING:
                                -2-
                                     NC: 2024:KHC-D:2753
                                     CRL.A No. 100167 of 2019




                         JUDGMENT

This appeal under Section 378(4) of the Criminal

Procedure Code (for short, 'the Cr.P.C.') is filed with a

prayer to set aside the order dated 04.01.2019 passed by

the Court of Additional Senior Civil Judge and JMFC,

Mudhol, in C.C.No.124/2013, wherein the complaint filed

by the appellant was dismissed for non-prosecution.

2. Heard the learned counsel for the parties.

3. Appellant had initiated proceedings against

the respondent herein for the offence punishable under

Section 138 of the Negotiable Instrument Act, 1881 (for

short, 'the N.I.Act'). The trial Court after recording the

sworn statement of the complainant being satisfied that

the complainant had made out a prima facie case for the

offence punishable under section 138 of the N.I.Act had

issued summons to the respondent/accused for his

appearance before the trial Court. The order sheet

maintained by the trial court would reflect that on

12.12.2013, the accused had refused to receive the

summon issued by the trial Court and therefore, non-

NC: 2024:KHC-D:2753

bailable warrant was issued against him. On the ground

that for the last five years non-bailable warrant issued

against the respondent/accused was not served and steps

were not taken to secure his presence, the trial Court has

dismissed the complaint vide the impugned order.

Aggrieved by the same, the appellant is before this Court.

4. Learned counsel for the appellant submits

that the order impugned does not comply the requirement

of the Section 70 of the Cr.P.C. He submits that if notice is

dispensed to the respondent with a liberty to the appellant

to take necessary steps to secure his presence before the

trial Court, he would not be put to any hardship nor his

case would be prejudiced. Accordingly, he prays to allow

the petition.

5. The order sheet of the trial Court would go to

show that the accused had refused to receive the

summons from the trial Court and therefore, non-bailable

warrant was issued against him. The appellant had taken

necessary steps for issuance of the non-bailable warrant

against the respondent/accused before the trial Court. In

NC: 2024:KHC-D:2753

spite of the same, non-bailable warrant issued against the

respondent/accused was not executed and same was

returned to the Court. The order sheet of the trial Court

does not reflect that the non-bailable warrant issued

against the respondent/accused was cancelled by the trial

Court at any point of time as required under Section 70 of

the Cr.P.C. Therefore, the trial Court was not justified in

dismissing the complaint for non prosecution. As rightly

contended by the learned counsel for the appellant if the

notice to the respondent is dispensed with, he is not likely

to be prejudiced and on the other hand if

appellant/complainant is not given an opportunity before

the trial Court to prosecute his complaint on merits, the

appellant will be put to irreparable hardship and loss.

Accordingly, the following:

ORDER

a) Appeal is allowed.

b) The order dated 04.01.2019 passed by the

Court of Additional Senior Civil Judge and JMFC,

NC: 2024:KHC-D:2753

Mudhol, in C.C.No.124/2013, dismissing the

complaint for non-prosecution is set aside.

c) C.C.No.124 /2013 is restored to file.

Sd/-

JUDGE AC