B Umesh Hegde vs Hamza
2024 Latest Caselaw 5790 Kant

Citation : 2024 Latest Caselaw 5790 Kant
Judgement Date : 26 February, 2024

Karnataka High Court

B Umesh Hegde vs Hamza on 26 February, 2024

                                       -1-
                                               CRL.A No. 2238 of 2022
                                                    NC: 2024:KHC:7839




            IN THE HIGH COURT OF KARNATAKA AT BENGALURU

               DATED THIS THE 26TH DAY OF FEBRUARY, 2024

                                    BEFORE
                     THE HON'BLE MS JUSTICE J.M.KHAZI
                     CRIMINAL APPEAL NO.2238 OF 2022
            BETWEEN:

                B UMESH HEGDE
                S/O B MAHALINGA HEGDE
                AGED ABOUT 62 YEARS,
                R/AT 2-1/721A ASHWIN URLANDI HOUSE,
                PUTTUR KASABA,
                PUTTUR TALUK - 574 201
                                                         ...APPELLANT
            (BY SRI. SACHIN B S, ADVOCATE)

            AND:

                HAMZA
                S/O LATE IBRAHIM
                AGED ABOUT 45 YEARS,
                GUMPACALLU HOUSE,
                BAPPALIGE PUTTUR - 574 201
                                                       ...RESPONDENT
Digitally    (RESPONDENT IS SERVED)
signed by
REKHA R
                   THIS CRL.A IS FILED UNDER SECTION 378(4) OF CR.P.C
Location:
High Court   PRAYING   TO SET ASIDE THE IMPUGNED ORDER DATED
of Karnataka 07.11.2018 IN P.C.NO.119/2016 (C.C.NO.130/2016) ON THE
             FILE OF THE COURT OF PRINCIPAL CIVIL JUDGE AND J.M.F.C.,
             PUTTUR, D.K. AND CONSEQUENTLY RESTORE THE COMPLAINT
             IN P.C.NO.119/2016 (C.C.NO.130/2016) ON THE FILE OF THE
             COURT OF PRINCIPAL CIVIL JUDGE AND J.M.F.C., PUTTUR,
             D.K, IN THE INTEREST OF JUSTICE AND EQUITY.

                THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE
            COURT DELIVERED THE FOLLOWING:
                              -2-
                                      CRL.A No. 2238 of 2022
                                           NC: 2024:KHC:7839




                        JUDGMENT

Being aggrieved by the dismissal 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 accused

issued a cheque for Rs.1,50,000/-. When presented for

encashment it was dishounoured as "Funds insufficient".

After issuing legal notice and on failure of accused to pay

the amount due under cheque, complaint is filed.

4. The accused appeared before the trial Court

and contested the matter by pleading not guilty.

5. When the case was posted for complainant's

evidence, it came to be dismissed on 07.11.2018 for non-

prosecution, by observing that despite granted sufficient

NC: 2024:KHC:7839

time, complainant has not led evidence and he is not

interested in prosecuting the case. It is contended by the

complainant that at the relevant point of time, he had

been to Rajasthan and therefore he could not appear

before the trial Court. In fact his counsel had filed

application for exemption, but without considering the

same, complaint is dismissed. He is having a good case on

merit and hence the appeal.

6. Though duly served with notice,

respondent/accused has failed to appear and contest the

matter.

7. Heard and perused the record.

8. Thus, complainant prosecuted the accused on

the allegations that the cheque issued by him towards

repayment of a sum of Rs.1,50,000/- came to be

dishonoured for funds insufficient and despite due service

of legal notice, accused failed to repay the same.

However, the trial Court dismissed the complaint on

07.11.2018, on the ground that complainant is not

NC: 2024:KHC:7839

interested in prosecuting the complaint, as he has failed to

lead evidence despite granting several adjournments.

9. The order sheet reveal that from 03.08.2017 till

07.11.2018, number of adjournments were granted to the

complainant to lead evidence. Ultimately, on 07.11.2018,

the trial Court dismissed the complaint for non-

prosecution. The complainant has claimed that at the

relevant point of time, he had been to Rajasthan and

therefore, he was unable to appear before the Court.

Though the complainant has not produced any document

to show that on 07.11.2018, he was not in Bengaluru and

had gone to Rajasthan and the order sheet reveal that he

was provided with several opportunities to lead evidence,

the fact remains that the complaint is not decided on

merit. Therefore, this Court is of the considered opinion

that complainant is entitled for reasonable opportunity to

prove his case. It would not cause any prejudice to the

accused as he would get an opportunity to defend himself

and accordingly, the following:

NC: 2024:KHC:7839

ORDER

(i) Appeal is allowed.

(ii) The impugned order dated 07.11.2018

passed in C.C.No.130/2016 (P.C.119/2016)

on the file of Prl.Civil Judge & JMFC.,

Puttur, D.K is set aside.