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IN THE HIGH COURT OF KARNATAKA

KALABURAGI BENCH

DATED THIS THE 30TH DAY OF SEPTEMBER, 2022

BEFORE

THE HON’BLE MR. JUSTICE P.N.DESAI

CRIMINAL APPEAL NO.200033/2022

BETWEEN:
SRI.NAGARAJ
S/O. CHANNABASSAPPA KALASHETTY,
AGE:42 YEARS,
OCC:SUPPLIER,
R/O:SUBHASH CHOWK, KALABURAGI - 585101
...APPELLANT
(BY SHRI.SANTOSH PATIL, ADVOCATE.)

AND:

SRI. ISHWAR
S/O. PRAKASH KAMALAPUR,
AGE:42 YEARS,
OCC:BUSINESS,
R/O. PLOT NO.6, NGO COLONY,
KALABURAGI
DIST:KALABURAGI - 585102
…RESPONDENT
(BY SHRI.M.A.JAGIRDAR AND
SHRI. G.B.YADAV, ADVOCATES.)

THIS CRL.A. FILED U/S. 378 (4) OF CR.P.C BY THE

ADVOCATE FOR APPELLANT PRAYING THAT THIS HONOURABLE
COURT MAY BE PLEASED TO ALLOW THE APPEAL FILED BY THE
APPELLANT AND DIRECT THE TRIAL COURT i.e. V ADDL. CIVIL
JUDGE AND JMFC COURT AT KALABURAGI, TO RESTORE THE
CASE TO ITS ORIGINAL STAGE IN C.C. NO.2735/2013,
DISMISSED FOR NON PROSECUTION VIDE ORDER DATED
17.10.2018, IN THE INTEREST OF JUSTICE.

THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR

JUDGMENT AND COMING ON FOR PRONOUNCEMENT OF
JUDGMENT, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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JUDGMENT

Appeal is filed assailing the order dated:17.10.2018

passed by Vth Additional Civil Judge and JMFC Court at

Kalaburagi in C.C.No.2735/2013, wherein the learned JMFC

dismissed the case for non-prosecution.

2. The brief case which has given rise for

consideration of this appeal is that:-

The appellant was a complainant before the Trial Court

who filed a private complaint against the

respondent/accused for offences under Section 138 of

Negotiable Instruments Act, 1881 (for short hereinafter

referred to as ‘N.I Act’). After recording the sworn

statement, the criminal case number was given as

C.C.No.2735/2013, but the said case came to be dismissed

for non-prosecution, as the complainant has not appeared

before the Court. Being aggrieved by the impugned order,

this appeal is filed.

3. Heard Sri. Santosh Paitl, learned counsel for the

appellant and Sri. M.A.Jagirdar, learned counsel for the

respondent.
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4. The learned counsel for the appellant argued that

the learned JMFC has not dismiss the case on merits instead

the case was dismissed for default. Learned counsel submits

that respondent/accused has borrowed a sum of

Rs.4,50,000/- from the complainant. But the accused did not

repay the said amount and when the complainant

approached him, the accused gave a cheque bearing

No.037971 dated 12.02.2013 in favour of the complainant

drawn on IDBI Bank Ltd., Kalaburagi. But the said cheque

given by the respondent/accused came to be dishonoured

with an endorsement ‘in sufficient fund’. Hence, the

complainant issued a legal notice. Even then the

respondent/accused did not turn-up to pay the amount.

Hence the complainant filed a private complaint. But the

Trial Court has dismissed the case of the complainant for

default. Learned counsel argued that infact challenging the

dismissal order, the appellant filed a revision petition under

Section 397 of Code of Criminal Procedure, 1973 (for short

hereinafter referred to as ‘Cr.P.C’) before the learned

Sessions Judge in Crl.R.P.No.2/2019, learned Sessions judge

vide order dated 21.10.2019 allowed the petition and

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directed to restore C.C.No.2735/2013 to its original file.

Aggrieved by the said order, the respondent/accused filed a

petition under Section 482 Cr.P.C., before this Court,

wherein this Court allowed the petition and held that the

remedy of complainant/appellant is to file an appeal. Hence

he has filed this appeal. Learned counsel also argued that

this Court by order dated 16.8.2022 has condoned the delay.

Looking into the stage of the case and the cheque amount

involved, he prays to allow the appeal by remanding the

matter back to the trial Court.

5. Against this learned counsel for

respondent/accused agued that there is an exorbitant delay

in filing the appeal. Even looking into the averments made in

the appeal, it does not show why he has not presented the

appeal before this Court well in time. There are no valid

grounds in the appeal to allow the appeal. The appellant

should give detail reason for restoration of the case. In

paragraph No.8 of the appeal memo, the grounds stated

with regard to limitation cannot be considered, as it does not

disclose sufficient cause for filing the appeal at a belated

stage. In view of the fact that there is inordinate delay in

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filing the appeal, if the appeal is allowed and the

C.C.No.2735/2013 is restored to its original file, it will cause

much hardship to the respondent/accused, as there is no

bonafide reason mentioned for non-appearance of

complainant/appellant before Trial Court. The learned

counsel in support of his arguments, relied on the decision of

Bombay High Court in the case of Vamsi Labs Private Ltd.

Vs. Alpine laboratories, passed in Criminal Appeal

No.498 Of 1998 dated 15.11.2019, wherein the Bombay

High Court at paragraph No.6 has considered that there is no

explanation regarding absence of complainant or his pleader.

The Bombay High Court held that the Magistrate has rightly

exercised jurisdiction under Section 256(1) of Cr.P.C and

dismissed the appeal. With these contentions he prayed to

dismiss the appeal.

6. I have perused the appeal memo, the trial Court

records and other materials placed on record. It is evident

from the records that a complaint came to be lodged by the

appellant under Section 138 of N.I.Act and the order sheet of

the Trial Court reveals that the present respondent who is

accused did not appear before the Court for several years
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and NBW came to be issued. Thereafter, the accused

appeared and got himself released on bail. Though the case

is of the year 2013, this respondent/accused appeared

before the Court after five years i.e. on 13.06.2018. When

the matter was posted for recording plea of accused, learned

JMFC dismissed the complaint on 17.10.2018 for non-

appearance of the complainant.

7. Be that as it may, the appellant filed revision

petition against said dismissal order. There was 44 days

delay in filing the revision and that was condoned by the

learned Sessions Judge and the revision was allowed. The

complaint was restored to its original file. Against that order,

respondent/accused filed criminal petition under Section 482

of Cr.P.C., which came to be allowed on 12.07.2021 by this

Court. Consequently, this appeal is filed on 11.02.2022.

8. The Hon'ble Supreme Court in the case of

Collector, Land Acquisition, Anantnag and another vs.

Mst.Katiji and others reported in AIR (1987) Supreme

Court 1353 at paragraph No.3 held as under:

3.xxxx
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1.xxxx

2.xxxx

3.xxxx

4.xxxx

5. xxxx

6. It must be grasped that judiciary is

respected not on account of its power to
legalize injustice on technical grounds but
because it is capable of removing injustice and
is expected to do so.

Making a justice-oriented approach from

this perspective, there was sufficient cause for
condoning the delay in the institution of the
appeal.

xxxx"

9. In the light of these principles, let me consider

the contentions of appellant. The order sheet of the trial

court discloses that the respondent/accused did not appear

before the Court when the summons was issued in the year

2013. Subsequently only after five years i.e., on 13.6.2018

he appeared before the Court. The case was posted for

recording plea of the accused. On 15.9.2018 the accused

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was absent. But the Court without taking into consideration

all these aspects after lapse of five years of lodging the

complaint, kept the case pending for want of appearance of

respondent/accused but, dismissed the complaint when the

case is posted for recording plea of the accused for non-

appearance of the complainant. The complainant presence is

not at all essential at the time of recording plea of the

accused is not at all essential. It is the duty of the Court to

record plea of the accused by putting substance of

accusation against him. The complainant presence is not all

essential.

10. In order to appreciate dismissal of complaint, it

is necessary to refer to the provisions of Section 256 of

Cr.P.C, which reads as under:

256. Non-appearance or death of

complainant.-(1) If the summons has been
issued on complaint, and on the day appointed
for the appearance of the accused, or any day
subsequent thereto to which the hearing may
be adjourned, the complainant does not
appear, the Magistrate shall, notwithstanding
anything hereinbefore contained, acquit the
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accused, unless for some reason he thinks it

proper to adjourn the hearing of the case to
some other day:

Provided that where the complainant is

represented by a pleader or by the officer
conducting the prosecution or where the
Magistrate is of opinion that the personal
attendance of the complainant is not
necessary, the Magistrate may dispense with
his attendance and proceed with the case.

(2) The provisions of sub-section (1) shall, so

far as may be, apply also to cases where the
non-appearance of the complainant is due to
his death."

11. On perusing the said Section, it is evident that

the Court has to exercise its discretion judiciously. The

proviso clearly indicates that when the Court is of the opinion

that the personal attendance of the complainant is not

necessary, the Magistrate may be dispense with attendance

of complainant and proceed with the case. Here complainant

is represented by an advocate. The stage of the case is for

recording of plea. The complainant presence was not

necessary and recording plea is by the Court. It is the task to

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be performed by the Court for progress of case. Therefore,

when the presence of complainant on that day is not

necessary, the learned JMFC ought not to have dismissed the

complaint for non-appearance of the complainant. The case

is not posted for hearing. For non-appearance of the

complainant on each and every date of hearing, an order of

acquittal cannot be passed in every case. The Court has to

see the stage of the case and the previous appearance of the

accused and complainant and how many years the complaint

is pending, what is the nature of case before passing any

such dismissal order. Simply to dispose of the cases or get

rid of the case, the complaint cannot be dismissed when

there no necessity of presence of complainant.

12. Here the complainant’s case is under Section 138

of N.I Act. The amount of cheque involved is stated to be

Rs.4,50,000/-. The sworn statement of complainant is given

and he has produced documents in support of his case.

Therefore, keeping in mind, the exercise of power under

appeal and the peculiar facts and circumstance of this case,

and in view of Section 256 Cr.P.C., in my considered view

the appeal deserves to be allowed. Simply because the

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drafting of appeal memo is lacking some ingredients is not a

ground to dismiss the appeal. Keeping in mind the purpose

for which the Courts are meant and making justice oriented

approach in my considered view, the appeal deserves to be

allowed. Accordingly, I pass the following :

ORDER

i) The appeal is allowed.

ii) The order dated 17.10.2018 passed in

C.C.No.2735/2013 by V Additional Civil Judge,
JMFC, Kalaburagi is hereby set aside. The
C.C.No.2735/2013 is restored to the original file
of V Additional Civil Judge, JMFC, Kalaburagi.

iii) The Trial Court shall proceed further from the

stage when the complaint is dismissed in
accordance with the procedure prescribed for
trial of such cases.

iv) As the case of the year 2013, both Appellant

and Respondent shall appear before Trial Court
on 21.10.2022 and assist the Court in
disposing the said case as expeditiously as
possible.

Sd/-
JUDGE
HJ