Karnataka High Court

Hdfc Bank Main Road vs Shivalingappa on 27 February, 2024

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                                                   NC: 2024:KHC-K:1765
                                                   CRL.A No. 200257 of 2023




                           IN THE HIGH COURT OF KARNATAKA,

                                   KALABURAGI BENCH

                      DATED THIS THE 27TH DAY OF FEBRUARY, 2024

                                          BEFORE
                           THE HON'BLE MR. JUSTICE C M JOSHI


                      CRIMINAL APPEAL NO.200257 OF 2023 (378)
                   BETWEEN:

                   HDFC BANK MAIN ROAD
                   OPP: PUBLIC GARDEN, KALABURAGI,
                   REPRESENTED BY,
                   ISHWAR SAJJAN S/O MUDKAPPA,
                   AGE: 33 YEARS,
                   OCC: REMEDIAL MANAGER IN HDFC BANK LTD.,
                   KALABURAGI.
                                                                  ...APPELLANT
                   (BY SRI BASAVARAJ M. POLICE PATIL, ADVOCATE)

                   AND:
Digitally signed
by KHAJAAMEEN      SRI. SHIVALINGAPPA S/O SANGAPPA
L MALAGHAN         R/O 1/4, DINASHIKURANUR VILLAGE,
Location: HIGH     TQ. AND DIST. KALABURAGI-585313.
COURT OF
KARNATAKA
                                                              ...RESPONDENT
                   (RESPONDENT SERVED)
                        THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378
                   (4) OF CR.P.C PRAYING TO ALLOW THE APPEAL BY RESTORING
                   THE CC NO. 5025/2016 TO ITS ORIGINAL STAGE BY SETTING
                   ASIDE THE ORDER PASSED BY THE IV ADDITIONAL CIVIL
                   JUDGE AND JMFC, KALABURAGI, IN CC NO.5025/2016 DATED
                   10.07.2023 BY ALLOWING THE APPEAL.

                       THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE
                   COURT DELIVERED THE FOLLOWING:
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                                   NC: 2024:KHC-K:1765
                                   CRL.A No. 200257 of 2023




                        JUDGMENT

Heard the learned counsel for the appellant.

02. The grievance of the appellant who was the

complainant before the Trial Court in C.C.No.5025/2016 is

that when the matter pertaining to the offence punishable

under Section 138 of Negotiable Instruments Act, (for

short 'N.I. Act'), was pending before the Trial Court, for

not taking steps to secure the accused, it came to be

dismissed for non-prosecution.

03. It is the case of the appellant that the appellant

had filed a private complaint under Section 138 of N.I. Act.

On the basis of an affidavit filed by the appellant, the

learned IV Additional Civil Judge and JMFC, Kalaburagi had

taken cognizance on 19.09.2016 and had issued process

to the accused. Thereafter, on several occasions summons

was issued to the accused, but it was not served. Non-

Bailable-Warrants were also issued to the accused, but

they could not be executed. More than 27 efforts were

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made by the Trial Court by issuance of Non-Bailable-

Warrants, even through the higher officers of the police.

Even then the Non-Bailable-Warrants could not be

executed as against the accused. On 30.09.2022, a

specific order was passed by the learned Magistrate that

the complainant shall assist the concerned police to

execute the Non-Bailable-Warrant and the Non-Bailable-

Warrant was issued through the Commissioner of Police.

04. The records reveal that the process fee was not

paid by the complainant. There was no representation on

behalf of the complainant on 18.04.2023 and 09.06.2023.

Therefore, by impugned order dated 10.07.2023, the

learned Magistrate noted that even after sufficient

opportunities were granted to the complainant, effective

steps were not taken by him to secure the accused.

Therefore, the Trial Court concluded that the complainant

is not interested in prosecuting the complaint and

therefore, dismissed the complaint for default.

NC: 2024:KHC-K:1765

05. Being aggrieved by the said order, the

complainant is before this Court in appeal contending that

when the criminal law is set in motion, the Non-Bailable-

Warrant has to be executed through the State and for the

said purpose it is not required of the complainant to pay

the process fee for issuing the Non-Bailable-Warrant. It

was contended that the Trial Court under the

misconception of law and facts has passed the impugned

order dismissing the complaint for non-prosecution. It is

specifically submitted that the Special Power of Attorney

Holder of the complainant had left the job and therefore,

there was inconvenience for the complainant to appear

before the Court.

06. The office objection was raised as to whether

the petition under Section 482 has to be filed or an appeal

is maintainable. Pending consideration of the said office

objection notice was issued to the respondent and despite

service of notice he has not appeared.

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07. Learned counsel appearing for the appellant has

placed reliance on a judgment of this Court in Criminal

Appeal No.200033/2022 in the case of Sri. Nagaraj V/s

Ishwar, wherein a Coordinate Bench of this Court has gone

in detail as to whether the petition under Section 482 of

Cr.PC has to be filed or whether an appeal is maintainable

as against the order of dismissal of the complaint for non-

prosecution, by the Trial Court. After relying on several

decisions and also on perusal of Section 256(1) of Cr.P.C.,

it came to the conclusion that an appeal is maintainable.

Therefore, in view of a categorical finding that an appeal is

maintainable, the office objections are overruled.

08. As noted supra, the copy of the order sheet

produced by the appellant would show that more than 20

opportunities were given to secure the presence of the

accused but he could not be secured. A specific direction

was issued to the complainant to assist the concerned

police to execute the NBW on 30.09.2022. Even then the

complainant neither assisted the police nor paid the PF. I

NC: 2024:KHC-K:1765

am unable to accept the contention of the learned counsel

appearing for the appellant that there was no necessity to

pay the PF or to assist the Trial Court in securing the

presence of the accused when the Trial Court had taken

cognizance of the offence. It was also submitted that

when the Trial Court had taken cognizance, the role of the

complainant comes to an end and it was only the State

which had to take care of the matter.

09. It is significant to note that in an action brought

by the complainant under Section 138 of the N.I.Act, it

cannot be said that it is a offence against the State.

Prima-facie, a promise made by the accused in the form of

negotiable instrument has been broken by him and

therefore in order to bring an order in the matter of breach

of promises concerning the negotiable instruments, the

provision of Section 138 of the N.I.Act are brought under

the purview of criminal law. Therefore, an offence under

Section 138 of the N.I.Act, perse are not the offences

against the State but it is an offence against the person

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who is affected by it. It may also be relevant to note that

the offence is compoundable in nature. In umpteen

number of decisions, it was observed that an offence

under Section 138 of the N.I.Act is quasi civil or quasi

criminal in nature. It is for this reason that the deviated

procedure in taking the cognizance of the offence has been

laid down by the Apex Court. Under these circumstances,

the contention of the learned counsel appearing for the

appellant that the appellant had no role in securing the

presence of the accused cannot be accepted.

10. It is to be noted that the Trial Court had given

two opportunities for the complainant and then it had no

other way than to pass the impugned order. Technically

the Trial Court was not in error, but however the grievance

of the complainant is that the person who had filed

complaint had left the job and the complainant being a

bank, was unable to appear on the particular day when the

impugned order came to be passed. Keeping in view the

larger interest that the complainant is a bank, this Court

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feels that the appeal deserves to be allowed. Again the

observations made by the Co-ordinate Bench of this Court

in the case of Sri. Nagaraj V/s Ishwar covered this aspect

also. Therefore, the appeal deserves to be allowed,

however with conditions. Hence, the following:

ORDER

I. The appeal is allowed subject to condition that the

appellant to pay the costs of Rs.10,000/- to the

District Legal Services Authority, Kalaburagi within a

period of 30 days from the date of this order.

II. Further the appellant /complainant shall assist the

Trial Court in securing the presence of the accused

expeditiously.