Karnataka High Court
The Managing Director vs Harun Tayyab Sayyad on 16 February, 2024
Author: S.Vishwajith Shetty
Bench: S.Vishwajith Shetty
-1-
NC: 2024:KHC-D:3747
CRL.A No. 100165 of 2019
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 16TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE S.VISHWAJITH SHETTY
CRIMINAL APPEAL NO. 100165 OF 2019 (A-)
BETWEEN:
THE MANAGING DIRECTOR,
RAITAR SAHAKARI SAKKARE
KARKHANE NIYAMIT,
RANNANAGAR,
TIMMAPUR, TQ. MUDHOL,
DIST. BAGALKOTE.
REB. BY ITS MALLIKARJUN
S/O DODDANAYAK MALLUR,
AGE: 51 YEARS.
...APPELLANT
(BY SRI SRINIVAS B. NAIK, ADVOCATE)
AND:
HARUN TAYYAB SAYYAD
AGE. 47 YEARS, OCC. CONTRACTOR,
R/O JAGIRMOHA,
ANNAPURNA AT POST CHONDI,
CHINNAPPA TQ. DHARUR, DIST. BEED,
DANDAGAL
STATE MAHARASHTRA-431122.
Digitally signed by
ANNAPURNA
...RESPONDENT
CHINNAPPA
DANDAGAL (RESPONDENT SERVED)
Date: 2024.02.20
10:48:13 +0530
THIS CRIMINAL APPEAL IS FILED U/S 378(4) OF CR.P.C.
SEEKING TO SET ASIDE THE ORDER OF DISMISSAL OF COMPLAINT
FOR NON-PROSECUTION DATED 25.01.2019 IN C.C.NO.190/2013 ON
THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC COURT, MUDHOL,
REGISTERED FOR THE OFFENCES PUNISHABLE U/S 138 OF
NEGOTIABLE INSTRUMENTS ACT, AND RESTORE THE COMPLAINT ON
ITS FILE.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
-2-
NC: 2024:KHC-D:3747
CRL.A No. 100165 of 2019
JUDGMENT
This appeal under Section 378(4) of the Criminal
Procedure Code (for short, 'the Cr.P.C.') is filed by the
complainant challenging the order dated 25.01.2019
passed by the Court of Senior Civil Judge and JMFC,
Mudhol, in C.C.No.190/2013, dismissing the complaint for
non-prosecution.
2. Heard the learned counsel for the parties.
3. Respondent who is served in the matter has
remained unrepresented before this Court.
4. Appellant herein had filed a private complaint
before the trial Court under Section 200 of the Cr.P.C. with
a prayer to convict 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 taking cognizance of the alleged offence had
issued summons to the respondent. Since the
respondent/accused had refused to receive the summons,
non-bailable warrant was issued to respondent by the trial
NC: 2024:KHC-D:3747
Court. On the ground that the complainant had not taken
steps for executing the non-bailable warrant issued
against the respondent/accused, the trial Court has
dismissed the complaint for non-prosecution on
25.01.2019. Being aggrieved by the said order,
complainant is before this Court.
5. Perusal of the order sheet material by the trial
Court would go to show that the respondent/accused had
refused to receive the summons that was issued to him by
the trial Court in C.C.No.190/2013, it is under these
circumstances, non-bailable warrant was issued to
respondent/accused by the trial Court. Order sheet of the
trial Court would go to show that in spite of the
complainant taking steps for executing the non-bailable
warrant issued to respondent/accused by the trial Court,
the non-bailable warrant issued by the Court had returned
unserved. However, the said non-bailable warrant issued
by the trial Court never stood cancelled. In my considered
view having regard to Section 70 of the Cr.P.C, without
NC: 2024:KHC-D:3747
canceling the non-bailable warrant, the trial Court ought
not have dismissed the complaint for non-prosecution. If
opportunity is not granted to the appellant/complainant to
prosecute his complaint on merits, he is likely to be put
into irreparable loss and hardship.
6. Under the circumstances, I am of the opinion
that the order dated 25.01.2019 passed by the trial Court
in C.C.No.190/2013 is liable to be set aside. Accordingly,
the following:
ORDER
a) Appeal is allowed.
b) Order dated 25.01.2019 passed by the Court of
Senior Civil Judge and JMFC, Mudhol, in
C.C.No.190/2013, is set aside and complaint is
restored to file.
Sd/-
JUDGE
AC
