[Cites 29, Cited by 0]

Karnataka High Court

Sri Chennaiah K vs Smt Bhagyamma V on 7 January, 2026

Author: M.Nagaprasanna

Bench: M.Nagaprasanna

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                                                 CRL.P No. 12712 of 2024


               HC-KAR




                 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                        DATED THIS THE 7TH DAY OF JANUARY, 2026

                                        BEFORE
                    THE HON'BLE MR. JUSTICE M.NAGAPRASANNA
                         CRIMINAL PETITION NO. 12712 OF 2024
               BETWEEN:

               SRI CHENNAIAH K.,
               AGED ABOUT 41 YEARS,
               S/O SRI KANAKAPPA,
               R/AT NO.129/1,
               AMN NILAYA,
               MANJU SHREE LAYOUT,
               OPP. FCI GOWDOWN,
               CHANNASANDRA, KADUGODI,
               BENGALURU - 560 067.
                                                           ...PETITIONER
               (BY SRI R.SHASHI KUMAR, ADVOCATE)

Digitally signed AND:
by NAGAVENI
Location: HIGH SMT. BHAGYAMMA V.,
COURT OF
KARNATAKA        W/O ANANDAPPA,
                 AGED ABOUT 49 YEARS,
                 R/AT DEBANNAHALLI VILLAGE,
                 NEAR GOVT. PRIMARY SCHOOL,
                 BUDIKOTE HOBLI,
                 BANGARPET TALUK - 563 114.
                                                          ...RESPONDENT
               (BY SRI CHETHAN A., ADVOCATE)
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                                                    NC: 2026:KHC:826
                                           CRL.P No. 12712 of 2024


HC-KAR



     THIS CRL.P IS FILED U/S 482 CR.P.C (U/S 528 BNSS)
PRAYING TO SET ASIDE THE ORDER DATED 19.12.2023
PASSED      BY   THE      HON'BLE         ACJM,     BANGLAORE      IN
CC.NO.17407/2022              FILED           AGAINST             THE
RESPONDENT/ACCUSED,           CONSEQUENTLY           RESTORE      THE
COMPLAINT FOR DISPOSAL OF THE SAME ON MERITS BEFORE
THE TRIAL COURT.

     THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,

ORDER WAS MADE THEREIN AS UNDER:

CORAM: HON'BLE MR. JUSTICE M.NAGAPRASANNA


                          ORAL ORDER

The petitioner is before this Court calling in question

order dated 19-12-2023 passed by the concerned Court in

C.C.17407 of 2022 rejecting the complaint, on account of the

continuous absence of the petitioner, for its non-prosecution.

2. Facts in brief, germane, are as follows:

The petitioner is the complainant, respondent the

accused. The accused and the petitioner have a transaction.

The transaction is to an amount of ₹ 9,00,000/-. The

transaction goes wrong and the proceedings are instituted by

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the complainant on account of dishonour of a cheque that is

said to have been issued by the respondent/accused. The

proceedings are taken up before the Court and the petitioner is

said to have remained continuously absent. Owing to the

absence of the petitioner, the Court rejected the proceedings

for its default by the following order:

"Called at 4.30 Ρ.Μ.

Counsel for complainant and complainant absent. Counsel for accused prays to dismiss the case and further submits that the complainant himself is accused in several cases and avoiding the court and the present case is filed to harass the accused.

Already sufficient opportunity given to the complainant to appear before the court for his cross examination. The party is not diligent but still on humanitarian ground and to avoid multiplicity of proceedings the court has adjourned the case several times.

However from the conduct of the parties it appears that the party isn't at all interested in the case.

Strict directions and reminders were given to dispose the cheque bounce cases within time frame. In order to implement the guidelines of Hon'ble Apex court and Hon'ble High court, to expedite the trial, this court is seeking assistance of bar members for speedy disposal.

The Hon'ble Apex court in Shiv Cotex v. Tirgun Auto Plast (P) Ltd. [(2011) 9 SCC 678 held "...A party to the suit is not at liberty to proceed with the trial at its leisure and pleasure and has no right to determine when the evidence would be let in by it or the matter should be heard. The parties to a suit whether the plaintiff or the defendant must cooperate with the court in ensuring the

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effective work on the date of hearing for which the matter has been fixed. If they do not, they do so at their own peril..."

In view of the above, this court dismisses the complaint for non-prosecution and default."

Against the said order of dismissal of the complaint for default,

the petitioner/complainant is before this Court invoking the

jurisdiction of this Court under Section 482 of the Cr.P.C.

3. Heard Sri R Shashi Kumar, learned counsel appearing

for petitioner and Sri Chethan A, learned counsel appearing for

respondent.

4. The learned counsel appearing for the petitioner would

seek to place reliance upon a judgment rendered by the co-

ordinate bench to contend that Section 482 of CrPC is the

remedy against dismissal of a complaint for its non-

prosecution, therefore, would submit that the order be quashed

and the matter be remitted back to the hands of the concerned

Court.

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5. The learned counsel appearing for the

respondent/accused would submit that dismissal of a complaint

before the concerned Court albeit for non-prosecution would

amount to an acquittal. If it amounts to an acquittal, the appeal

under Section 378(4) of CrPC would be maintainable and not a

petition under Section 482 of CrPC. The learned counsel would

seek to place reliance upon certain judgments to buttress his

submission, which would bear consideration qua their relevance

in the course of the order.

6. I have given my anxious consideration to the

submissions made by the respective learned counsel and have

perused the material on record.

7. The afore-narrated facts are not in dispute. The only

issue that calls for consideration is, whether a petition under

Section 482 of CrPC would be entertainable against an order of

dismissal of a complaint for its non-prosecution?

8. The issue need not detain this Court for long or delve

deep into the matter, as the Apex Court in its judgment

rendered in the case of CELESTIUM FINANCIAL v.

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A GNANASEKARAN1 considers this very issue, whether an

appeal would be entertainable at the hands of a victim against

an order of acquittal. The Apex Court holds that an appeal is

entertainable in the following paragraphs:

".... .... .....

8. The right to prefer an appeal is no doubt a statutory right and the right to prefer an appeal by an accused against a conviction is not merely a statutory right but can also be construed to be a fundamental right under Articles 14 and 21 of the Constitution. If that is so, then the right of a victim of an offence to prefer an appeal cannot be equated with the right of the State or the complainant to prefer an appeal. Hence, the statutory rigours for filing of an appeal by the State or by a complainant against an order of acquittal cannot be read into the proviso to Section 372 of the CrPC so as to restrict the right of a victim to file an appeal on the grounds mentioned therein, when none exists.

9. In the circumstances, we find that Section 138 of the Act being in the nature of a penal provision by a deeming fiction against an accused who is said to have committed an offence under the said provision, if acquitted, can be proceeded against by a victim of the said offence, namely, the person who is entitled to the proceeds of a cheque which has been dishonoured, in terms of the proviso to Section 372 of the CrPC, as a victim. As already noted, a victim of an offence could also be a complainant. In such a case, an appeal can be preferred either under the proviso to Section 372 or under Section 378 by such a victim. In the absence of the proviso to Section 372, a victim of an offence could not have filed an appeal as such, unless he

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was also a complainant, in which event he could maintain an appeal if special leave to appeal had been granted by the High Court and if no such special leave was granted then his appeal would not be maintainable at all. On the other hand, if the victim of an offence, who may or may not be the complainant, proceeds under the proviso to Section 372 of the CrPC, then in our view, such a victim need not seek special leave to appeal from the High Court. In other words, the victim of an offence would have the right to prefer an appeal, inter alia, against an order of acquittal in terms of the proviso to Section 372 without seeking any special leave to appeal from the High Court only on the grounds mentioned therein. A person who is a complainant under Section 200 of the CrPC who complains about the offence committed by a person who is charged as an accused under Section 138 of the Act, thus has the right to prefer an appeal as a victim under the proviso to Section 372 of the CrPC.

10. As already noted, the proviso to Section 372 of the CrPC was inserted in the statute book only with effect from 31.12.2009. The object and reason for such insertion must be realised and must be given its full effect to by a court. In view of the aforesaid discussion, we hold that the victim of an offence has the right to prefer an appeal under the proviso to Section 372 of the CrPC, irrespective of whether he is a complainant or not. Even if the victim of an offence is a complainant, he can still proceed under the proviso to Section 372 and need not advert to sub-section (4) of Section 378 of the CrPC."

(Emphasis supplied)

9. The further issue would be, whether the order

dismissing the complaint for its non-prosecution would be an

order of acquittal. This issue again is no longer res integra. If

an order is passed by the concerned Court under Section

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256(1) of the CrPC, it would amount to an acquittal and the

appeal would be entertainable is what the High Court of

Allahabad in the case of SHITALA BAKSH SINGH V. STATE

OF UTTAR PRADESH2 holds. The High Court of Allahabad

holds as follows:

".... .... ....

14. The issue also engaged the attention of the Bombay High Court in Om Gayatri & Co. v. State of Maharashtra, 2005 SCC OnLine Bom 1622, where it was observed:

11. Section 256(1) mandates that if the absence of the complainant is not justified, the Magistrate shall acquit the accused. In a summons case, instituted on a complaint, if the complainant is absent on the date of hearing, the Magistrate has to follow either of the three courses, namely. 1) Acquit the accused; 2) to adjourn the case and 3) to dispense with the attendance of the complainant and to proceed with the case. In the present case, the Magistrate found that the complainant was avoiding to lead evidence, therefore, relying on the ruling of this Court reported in 1998 Mah LJ 576 : (1998 Cri LJ 3754) the Magistrate proceeded to pass an order acquitting the accused. Once this order has been passed, the remedy of the complainant is to prefer an appeal under Section 378 of the Code of Criminal Procedure after obtaining leave of the Court as required by Section 378(4) of Cr. P.C. This view is consistently taken by this Court. The earliest decision is that of Justice Vaidya, reported in AIR 1959 Bom 94. This point then, arose in the matter of Dharamaji Gangaram Gholam v. Vithoba Soma Khade, reported in 1992 Mah LJ 118 : (1992 Cri LJ

870). In that case, the accused came to be acquitted in a complaint case by the learned Magistrate for the offences punishable under Sections 417 and 420 read with 34 of the Penal Code, 1860. The point whether an appeal lies against the order of acquittal or whether a revision can

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be maintained arose for the consideration of the Court.

Referring to earlier decision of this Court and to the provisions of Section 401(4) which provides that where an appeal lies under the provisions of the Code of Criminal Procedure, and no appeal is brought, no proceeding by way of a revision shall be entertained at the instance of the party who could have appealed. Daud, J. came to the conclusion that only an appeal can be preferred against the order of acquittal in consonance with provisions of Section 378, Cr. P.C. In this behalf, reference can also be made to another judgment of this Court, reported in (1999) 3 Mah LJ 397 in the matter of Raja s/o Dr. S.P. Upadhyay v. State or Maharashtra. In that case also prosecution was for offence punishable under Section. 138 of N.I. Act. In the absence of complainant, the learned Magistrate passed an order of discharge. A revision was filed against that order. It was entertained by the Sessions Judge. The order of Sessions Judge was appealed against. In this context, Patel, J. observed in para 9 of the report that: "It can not be gainsaid that merely because the Magistrate committed an error in recording the order of discharge, that would invest the complainant with a right to prefer a revision and he was justified in doing so. As the order itself is very clear that it has been passed under Section 256(1) of Cr. P.C., 1973, it will necessarily have to be construed an order of acquittal under section 256(1) and not that of discharge. There is one more distinction which will have to be kept in mind and that is, that once an order of acquittal under section 256(1) of the Criminal Procedure Code, 1973 is passed, then the complainant is debarred from filing a second complaint on the same facts so long as the order of acquittal is not set aside. Therefore, the only course open to the complainant was to prefer an appeal in the High Court against the said order of the learned Magistrate by special leave of the Court under section 378(5) of the Criminal Procedure Code, 1973."

12. It may also be worthwhile to refer to the views of other High Courts on the point. In the matter of Krishna Kumar Gupta v. Mohammed Jaros, reported in 2003 Cri LJ 149, while dealing with this point, Mahmood Ali, J. referred to the submissions made on behalf of appellant in para 4 of the report. Its observed: "He had cited Guest Kleen Williams Ltd. v. Murarilal, 1984 RLR 32 : (1983 Cri LJ 554), where a Division Bench of this Court held that against an order of dismissal of a complaint under section 256 of the Cr. P.C. only an appeal lies. He

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also referred to the judgment of Shri M.M.S. Bedi v. Union Territory of Chandigarh, (1986) 89 PLR 687; Vinod Kumar v. State of Punjab, (1999) 4 RCR 469 and a judgment of Himachal High Court in H.P. Agro Industries Corporation Ltd. v. M.P.S. Chawla, (1997) 2 Crimes 591 in support of his argument that the dismissal of the complaint under section 256 of the Cr. P.C. resulted in acquittal of the accused and an appeal and not the revision will be the remedy to challenge it." This submissions were accepted by the learned Judge. Dealing with these arguments, the learned Judge observed in para 5: "Counsel for respondent initially justified the order of the Additional Sessions Judge impugned in this petition on the ground that it was not in accordance with the law laid down by the Supreme Court in Associated Cement Co. Ltd. v. Keshavanand, (1998) 1 SCC 687 : AIR 1998 SC 596 : (1998 Cri LJ 856) and a judgment of the Division Bench of this Court in Shiv Kumar v. Mond, Saghir, 1997 JCC 149 : (1997 Cri LJ 1264) but finally conceded that technically speaking revision did not lie against the order of dismissal of a complaint under Section 256, Cr. P.C. in view of the consistence view held by the courts that dismissal resulted in acquittal of the accused and against the acquittal only an appeal would be the appropriate legal remedy to challenge it, "In H.P. Agro Industries Corporation Ltd. v. M.P.S. Chawla, reported in (1997) 2 Crimes 591, petition under Section 482 of Cr. P.C. was filed challenging the order of dismissal passed under section 256 of Cr. P.C. After referring to the decisions of the Supreme Court in Bindeshwari Prasad Singh v. Kali Singh, and Maj. Genl. A.S. Gauraya v. S.N. Thakur. Learned Judge observed in para 12 of the report: "There is no denying that the dismissal of the complaint in default under Section 256 of the Code of Criminal Procedure entails the acquittal of the accused. Once an accused has been acquitted of the offence, the law provides a remedy by way of an appeal against the order of acquittal. Once a remedy by way of appeal is available to the petitioner under Section 378(4) of the Code of Criminal Procedure, on the failure of the petitioner to avail such a remedy, this Court is not to exercise the inherent powers for interfering with the impugned order.

13. It can be seen that earlier decisions of this Court and other High Courts have consistently laid down law that only an appeal lies against order of dismissal of

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the complaint which amounts to acquittal of the accused and in case of acquittal remedy of revision is not available to the aggrieved party. Not only that under Section 401 of Cr. P.C. there is express bar for entertaining a revision at the instance of the party who could have appealed.

14. .... The point whether an appeal or revision lies against the order of acquittal passed under Section 256(1) Cr. P.C. was not before the Court and was not decided by the Court in this ruling. This judgment there fore is not an authority on the point whether a revision or appeal lies against an order of acquittal passed under Section 256(1) of the Code of Criminal Procedure. Be that, as it may, similar situation arose in the past before this Court in the matter of Dharamji Gangaram v. Vithoba Khade, where, Baud, J. was faced similar dilemma. In that case also, reference was made to the judgment of Sharad Manohar J. in Kokilabai Ramchandre Mahajan v. Gangadhar Shivram Mahajan, reported in (1986) 2 Bom CR 289, wherein it was held that the revision against the order of acquittal is maintainable. After referring to the relevant observations and the legal provisions, Daud, J., distinguished the judgment on facts and observed in para 5 page 1217 that: "Had his attention been drawn to Badakas is decision, perhaps learned Judge may not have chosen to express himself in the broad terms he has done. In the present case, we are also faced with the similar situation. However, in view of the judgments of the Apex Court that the long standing precedents are to be followed, and in view of the fact that while deciding the controversy in the matter of Mahendra Indermal Borana v. Anil Shankar Joshi, (supra) the attention of the, Court was not drawn to the earlier decisions of this Court as well as of other High Courts holding that in case of order being passed under Section 256(1), Cr. P.C. acquitting the accused, the only remedy is to file an appeal and not a revision....."

15. The question that is involved here also arose before the Andhra Pradesh High Court in K.L. Venkateswar Rao v. The State of A.P., (2003) 3 APLJ 398 (HC), in the context of challenging an order of acquittal under Section 256(1) of the Code, where the limitation to

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file an appeal under Section 378(4) of the Code had expired.

16. Apart from the question that was involved regarding the maintainability of an application before the Magistrate to recall his order under Section 256(1) of the Code, the other question was formulated by the Court in the following words:

"(ii) When once the appeal lies to the High Court against the order of acquittal with special leave, petition filed under Sec. 482 Cr. P.C., to set-aside the dismissal order acquitting the accused can be entertained even after 4 years 3 months?"

17. The question was answered by the Court speaking through A. Gopal Reddy, J. thus:

13. Point No. 2: Learned Senior Counsel Sri C. Padmanabha Reddy contends that if the dismissal order allowed to stand would result injustice to the complainant and will yield no remedy and this court can convert the petition as appeal and can set-aside the order passed by the Magistrate dt. 21-8-1997 to meet the ends of Justice.

14. It is not in dispute that against any order passed by the Magistrate acquitting the accused, the complainant can file an appeal with special leave to file an appeal from the order of acquittal. Sub-section (5) of section 378 clearly mandates that no such application under sub-

section (4) for grant of special leave to appeal against order of acquittal shall be entertained by the High Court after expiry of six months where the complainant is a public servant and 60 days in every other case, computed from the date of that order of acquittal. Since the present petitions filed by the complainant nearly after 4 years 3 months if entertained and converted into appeals on acquittal in exercise of inherent jurisdiction under Sec. 482 Cr. P.C., the same will result in taking away the valuable right accrued to the accused.

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15. It is fairly well settled that the main factor which would influence the court in extending the benefit of Sec. 14 of the Limitation Act, 1963 to a litigant is whether the prior proceeding had been prosecuted with due diligence and 'good faith'. The expression 'good faith' as used in Section 14 means 'exercise of due care and attention'. In the context of Section 14, the expression 'good faith' qualifies prosecuting the proceedings in the court which ultimately found to have no jurisdiction.

16. In view of the above, the present criminal petitions filed by the complainant beyond the period prescribed for filing the appeals, i.e., nearly after 4 years 3 months, if treated as appeals, a question may arise his filing of criminal petitions for restoring the CCs by setting aside the dismissal order are with due diligence and 'good faith'. Even if the answer is in the affirmative, further question may arise, once the order passed by the Magistrate is challenged as nullity in Crl. P. Nos. 821 and 822 of 1999 what made the petitioner to wait for nearly 2 years 5 months in challenging the dismissal order under Sec. 482 Cr. P.C., after his entering appearance in the above petitions is not forthcoming. The complainant did not choose to act promptly to exercise his right of appeal, thereby abandoned that right. In such view of the matter, this court is of the considered view the right accrued to the accused on extinguishment of complainant's right cannot be taken away by converting the criminal petitions into appeals.

18. The authority, therefore, is pre-ponderant, may be of persuasive, that an order under Section 256(1) of the Code is appealable under Section 378(4) of the Code, and, therefore, an application under Section 482 of the Code would not lie against that order. It has to be challenged by way of an appeal against acquittal subject to all requirements of the law as to leave, limitation et cetera."

(Emphasis supplied)

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10. Long before the judgment of the High Court of

Allahabad, the High Court of Andhra Pradesh in the case of

K.L.VENKATESWAR RAO v. STATE OF ANDHRA PRADESH

(2003 SCC OnLine AP 943) holds that the appeal would be

maintainable subject to the question of limitation.

11. With all these factors, what would unmistakably

emerge is, that the petition under Section 482 CrPC would not

become entertainable in the teeth of the availability of a