Karnataka High Court
Shri Dinakar S/O. Narayan Nayak vs Shri Rajesh S/O. Venkatraman Nayak on 19 February, 2024
Author: S.Vishwajith Shetty
Bench: S.Vishwajith Shetty
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NC: 2024:KHC-D:3894
CRL.A No. 100155 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 19TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE S.VISHWAJITH SHETTY
CRIMINAL APPEAL NO. 100155 OF 2023
BETWEEN:
SHRI DINAKAR S/O NARAYAN NAYAK
AGE: 66 YEARS, OCC: RTD. TEACHER
& LIC AGENT, R/O. NUSHIKOTE CROSS,
HIREGUTTI, TQ. KUMTA,
DIST. UTTAR KANNADA,
PIN-581333
...APPELLANT
(BY SRI ASHOK ANGADI FOR
SRI. HARISH NAYAK, ADVOCATE)
AND:
SHRI RAJESH S/O VENKATRAMAN NAYAK
AGE: 42 YEARS, OCC: BUSINESS,
R/O. HOUSE NO.1375,
OPPOSITE HEROHONDA SHOWROOM,
ANNAPURNA COLLEGE ROAD, KUMTA,
CHINNAPPA TQ. KUMTA, DIST. UTTAR KANNADA,
DANDAGAL
PIN-581343
Digitally signed by
ANNAPURNA
CHINNAPPA
DANDAGAL
Date: 2024.02.21
...RESPONDENT
11:11:21 +0530
(NOTICE SERVED ON MOTHER OF RESPONENT
MOTHER-SHANTI VENKATRAMAN)
THIS CRIMINAL APPEAL IS FILED U/SEC. 378(4) OF CR.P.C.
SEEKING TO SET ASIDE THE JUDGMENT DATED 10.03.2023 PASSED
BY THE CIVIL JUDGE AND JMFC-KUMTA IN CC NO. 675/2018
DISMISSED THE COMPLAINT FOR NON-PROSECUTION AND ALLOW
THE COMPLAINT FILED BY THE PETITIONER AGAINST THE
RESPONDENT FOR THE OFFENCE P/U/SEC. 138 N.I. ACT.
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NC: 2024:KHC-D:3894
CRL.A No. 100155 of 2023
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal under Section 378(4) of Cr.PC is filed by the
complainant with a prayer to set aside the order dated
10.03.2023 passed by the Civil Judge & JMFC, Kumta, in
C.C.No.675/2018 dismissing the complaint for non-prosecution.
2. Heard the learned Counsel for the appellant.
Respondent who is served in the matter, has remained
unrepresented before this Court.
3. The appellant herein had filed a complaint under
Section 200 of Cr.PC before the trial court with a prayer to
convict the respondent for the offence punishable under Section
138 of the Negotiable Instruments Act, 1881. The Trial Court
after recording the sworn statement of the complainant on
24.09.2018, also treated the same as his examination-in-chief
and had issued summons to the respondent. The respondent
had appeared before the Trial Court on 21.11.2019 and on the
said date, he was enlarged on bail. Since no application was
filed under Section 145(2) of the N.I.Act by the respondent
with a prayer to permit the respondent to cross-examine the
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complainant, the Trial Court had adjourned the case for defence
evidence.
4. Subsequently, the respondent had filed an application
under Section 145(2) of the N.I.Act, which was allowed by the
trial Court by order dated 10.10.2022 and the matter was
posted for cross examination of complainant (PW.1) on
28.10.2022. On the ground that the complainant had not
tendered himself for cross examination, the complaint was
subsequently dismissed for non-prosecution on 10.03.2023. It
is under these circumstances, appellant is before this Court.
5. From perusal of the order sheet maintained by the trial
Court in C.C.No.675/2018, it is seen that after the respondent
had appeared before the trial Court since he had not made any
application under 145(2) of the Negotiable Instrument Act,
seeking permission to cross examine PW.1, the trial Court by
order dated 23.01.2020 had adjourned the case for defence
evidence. Subsequently respondent had filed an application
under Section 145(2) of the N.I.Act, which was allowed on
10.10.2022. The order sheet maintained by the trial Court
would go to show that though the matter was listed before the
trial Court thereafter on several dates, the accused was
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throughout absent and not even on a single date after
10.10.2022 the accused was present before the trial Court. On
10.03.2023, on the ground that the complainant had not
tendered himself for cross examination, the trial Court has
proceeded to dismiss the complaint for non-prosecution.
6. The order sheet maintained by the trial Court would go
to show that throughout the accused was continuously absent
before the trial Court. The trial Court had issued NBW and also
proclamation orders against the accused and thereafter, his
presence was secured. Subsequently, he was released on bail
and even thereafter he did not appear before the trial Court.
Though his application under Section 145(2) was allowed on
10.10.2022, he did not appear even on a single date thereafter
before the trial Court. Under these circumstances, I am of the
opinion that the trial Court was not justified in dismissing the
complaint for non-prosecution on 10.03.2023. Accordingly, the
following:
ORDER
a) The criminal appeal is allowed.
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b) The order dated 10.03.2023 passed by the Court of the
Civil Judge & JMFC, Kumta, in C.C.No.675/2018 is set
aside. Complaint is restored to file.
Sd/-
JUDGE
KK/AC
CT:GSM
