Karnataka High Court
Sri N S Shantha Kumar vs Sri. Sathisha on 17 February, 2025
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
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NC: 2025:KHC:6908
CRL.A No. 2072 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL APPEAL NO. 2072 OF 2024
BETWEEN:
SRI. N.S. SHANTHA KUMAR
S/O SHANKARA SHETTY,
AGED ABOUT 53 YEARS,
R/AT NITTURU VILLAGE
SALAGAME HOBLI,
HASSAN TALUK,
HASSAN - 573 219.
...APPELLANT
(BY SRI. NAWAZ BASHA QUADRI SYED, ADVOCATE
SRI. SUPRITH K.H, ADVOCATE)
AND:
SRI. SATHISHA
S/O SRI. RANGAIAH,
AGED ABOUT 53 YEARS,
Digitally signed by
HEMAVATHY
R/AT KANATURU VILLAGE,
GANGABYRAPPA PALYA HOBLI, ALURU TALUK,
Location: HIGH COURT
OF KARNATAKA HASSAN - 573213.
(RESPONDENT IS SERVED AND UNREPRESENTED)
...RESPONDENT
THIS CRL.A IS FILED U/S 378(4) OF CR.P.C. PRAYING TO
SET ASIDE THE IMPUGNED ORDER PASSED IN
CC.NO.3950/2016 DTD 30.09.2024 ON THE FILE LEARNED 5TH
ACJ AND JMFC, HASSAN.
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NC: 2025:KHC:6908
CRL.A No. 2072 of 2024
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
ORAL JUDGMENT
1. This appeal is filed by the appellant - complainant
praying to set-aside the impugned order dated 30.09.2024
passed in C.C.No.3950/2016 by the V Additional Civil
Judge and J.M.F.C, Hassan, whereunder, the complaint
has been dismissed for default.
2. Heard learned counsel for the appellant -
complainant. Inspite of service of notice, the respondent -
accused has remained absent and unrepresented.
3. The appellant - complainant initiated the proceedings
against the respondent - accused for the offence under
Section 138 of the Negotiable Instruments Act, 1881 (for
short hereinafter referred to as "N.I.Act") and it was
pending in C.C.No.3950/2016, on the file of the
V Additional Civil Judge and J.M.F.C, Hassan. In the said
criminal case, inspite of service of summons the
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respondent - accused did not appear and the Trial Court
had issued the Non Bailable Warrant against him. The
appellant - complainant had paid the process fee for issue
of the Non Bailable Warrant from time to time. The police
did not execute the Non Bailable Warrant issued against
the respondent - accused. The case was listed on
30.09.2024 for return of the Non Bailable Warrant. On
that day, noting the absence of the appellant -
complainant and also noting that he did not assist the
police for execution of the Non Bailable Warrant issued
against the respondent - accused, the Trial Court has
dismissed the complaint for default. The said order has
been challenged by the appellant - complainant in this
appeal.
4. Learned counsel for the appellant - complainant
would contend that the appellant - complainant had paid
the process fee and it is the duty of the police to execute
the Non Bailable Warrant issued against the respondent -
accused. He further submits that there is no role of the
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appellant - complainant in execution of the Non Bailable
Warrant issued against the respondent - accused. The
complaint came to be dismissed on 30.09.2024 on the
date on which, the Non Bailable Warrant issued against
the respondent - accused had been returned unexecuted.
On that day, the appellant - complainant had remained
absent and his counsel also remained absent, noting the
same, the complaint was dismissed for default. He further
submits that the Trial Court ought to have given the
opportunity to the appellant - complainant to take further
steps against the respondent - accused and erred in
dismissing the complaint on the very same day when the
Non Bailable Warrant was returned unexecuted. With this,
he prayed for allowing the appeal and restoring the said
criminal case.
5. Having heard the learned counsel, the Court has
perused the impugned order and the other materials
placed on record.
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6. The summons issued to the respondent - accused
had been served and inspite of that, he had remained
absent and therefore, the Non Bailable Warrant had been
issued against the respondent - accused. The complainant
had paid the process fee from time to time for issuance of
the Non Bailable Warrant against the respondent -
accused. On 22.07.2024, the appellant - complainant had
furnished the process fee and the Court had ordered for
re-issuance of the Non Bailable Warrant against the
respondent - accused with the assistance of the appellant -
complainant through Extension Police Station, Hassan. As
the appellant - complainant had not assisted the police in
execution of the Non Bailable Warrant, the complaint came
to be dismissed for default on 30.09.2024. The Non
Bailable Warrant issued against the respondent - accused
has to be executed by the police. There is no role of the
appellant - complainant in execution of the Non Bailable
Warrant issued against the respondent - accused. The
appellant - complainant had furnished the process fee for
issuance of the Non Bailable Warrant. It is the police who
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have failed in executing the Non Bailable Warrant issued
against the respondent - accused. The appellant -
complainant cannot be blamed for non execution of the
Non Bailable Warrant by the police. On receipt of the
report of non execution of the Non Bailable Warrant issued
against the respondent - accused, the learned Magistrate
ought to have given an opportunity by adjourning the
matter. But on the same day, the learned Magistrate has
dismissed the complaint for default. Therefore, the Trial
Court has erred in dismissing the complaint by the
impugned order. Therefore, the impugned order requires
to be set-aside and the criminal case requires to be
restored. In the result, the following;
ORDER
The appeal is allowed. The impugned order dated
30.09.2024 passed in C.C.No.3950/2016 by the
V Additional Civil Judge and J.M.F.C, Hassan is set-aside.
C.C.No.3950/2016 is ordered to be restored. The
appellant - complainant is directed to appear before the
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Trial Court on 19.03.2025 without awaiting any Court
notice.
Registry is directed to send a copy of this order to
the Trial Court forthwith along with the Trial Court records,
if received.
Sd/-
(SHIVASHANKAR AMARANNAVAR)
JUDGE
GH
