Karnataka High Court
Paramesh Gowda vs Mahadev on 25 January, 2023
Author: P.N.Desai
Bench: P.N.Desai
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CRL.A No. 1488 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE P.N.DESAI
CRIMINAL APPEAL NO. 1488 OF 2022
BETWEEN:
PARAMESH GOWDA,
S/O. BYRAPPA GOWDA,
AGED ABOUT 52 YEARS,
R/A.1220, 5TH CROSS,
SAHUKAR CHENNAIAH LAYOUT,
T.K.LAYOUT, MYSURU-570009
...APPELLANT
(BY SRI. HONAKHANDE BASAGOWDA PANDIT., ADVOCATE)
AND:
Digitally
signed by
NAGARATHNA MAHADEV,
M
Location: S/O.MAHADEVAPPA,
HIGH COURT
OF AGED ABOUT 60 YEARS,
KARNATAKA
R/A.MURADAGALLI, UDBUR POST,
JAYAPURA HOBLI, MYSURU TALUK - 570008
...RESPONDENT
(BY SRI. HARSHA G, ADVOCATE)
THIS CRL.A. FILED U/S.378(4) CR.P.C BY THE ADVOCATE
FOR THE APPELLANT/S PRAYING THAT THIS HON'BLE COURT MAY
BE PLEASED TO SET ASIDE THE ORDER DATED 06.05.2022 IN
C.C.NO.2136/2019 PASSED BY THE COURT OF III-JMFC, MYSURU
FOR DISMISSAL OF THE COMPLAINT FOR NON-PROSECUTION
AND ACQUITTAL OF THE ACCUSED/RESPONDENT FOR THE
OFFENCE P/U/S 138 OF N.I ACT AND RESTORE THE MATTER ON
ITS ORIGINAL STATUS AND REMAND TO THE TRIAL COURT FOR
DISPOSAL IN ACCORDANCE WITH LAW.
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CRL.A No. 1488 of 2022
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal arises out of the order dated 06.05.2022 passed in C.C.No.2136/2019 by the III JMFC at Mysuru, wherein the complaint filed by the complainant came to be dismissed for non- prosecution and the learned JMFC has acquitted the respondent/accused for the offence punishable under Section 138 of Negotiable Instruments Act, 1881 (for short hereinafter referred to as 'N.I.Act').
2. The complainant has filed a complaint before the III Additional I Civil Judge and JMFC, Mysuru, against the respondent/accused for the offence punishable under Section 138 of N.I. Act, stating that the respondent/accused has borrowed a sum of Rs.4,50,000/- from the complainant. The complainant when demanded the accused to repay the same, he has issued a cheque bearing No.821701 dated 25.3.2013 for a sum of Rs.4,50,000/-. The said cheque, when presented for encashment, the same came to be dishonoured with an endorsement 'funds insufficient'. Hence, the complainant issued a statutory notice to the respondent/accused on 25.04.2013 through RPAD. But the said notice returned un-served to the respondent as 'not claimed'. -3- CRL.A No. 1488 of 2022 Even though, the respondent/accused did not repay the amount. Hence, the complainant filed the complaint. The said complaint came to be dismissed for non-prosecution. Hence, this appeal.
3. Heard Sri. Honakhande Basagowda Pandit, learned counsel for the appellant and Sri. Harsha G, learned counsel for respondent.
4. The learned counsel for the complainant argued that the learned JMFC has taken cognizance, issued summons, thereafter, the plea of the accused was recorded, the respondent not pleaded guilty and claimed to be tried and consequently, the matter was posted for the evidence of complainant. As the complainant was suffering from Jaundice, he was taking treatment and therefore, he could not appear before the Court on the date fixed for evidence. Therefore, dismissing the complaint of the complainant for non-prosecution and acquitting the respondent/accused is not legal. Learned counsel argued that on several occasions, the accused was not present and even the complainant has served hand summons to the accused and the Trial Court has issued NBW to the accused to secure his presence, thereafter only on three or four occasions, the complainant could not appear before Court due to his health issues. The Trial Court -4- CRL.A No. 1488 of 2022 ought to have granted an opportunity to the appellant to prosecute his case. The Trial Court has not assigned proper or valid reasons to dismiss the complaint, the order being erroneous, needs to be dismissed and as the cheque amount involved is Rs.4,50,000/-, learned counsel request to grant an opportunity to the appellant to proceed with his case. Hence, with these main arguments, the learned counsel prayed to allow this appeal.
5. Against this, learned counsel for the respondent/accused argued that the case is of the year 2014, inspite of giving sufficient opportunities, the complainant has not lead his evidence. Therefore, the Trial Court rightly dismissed the complaint. No bonafides are shown by the complainant for his absence and not recording the evidence. With these main arguments, learned counsel for the respondent/accused prayed to dismiss the appeal.
6. I have perused the impugned order dated 6.5.2022 and the same reads as under:
"Accused present. His counsel present and submitted since from long complainant is not appearing to lead evidence and prayed to dismiss the complaint. No representation. No grounds made out. Kept by.-5- CRL.A No. 1488 of 2022
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III JMFC., Mysuru Case again called at 03:30 p.m. Accused present. Complainant absent. No representation from complainant side. Counsel for accused opposed to grant adjournment. On Perusal of order sheet accused is regularly appearing before the Court. Complainant did not appear to lead evidence when matter is posted for complainant evidence on 6.11.2022, 9.12.2021, 14.01.2022, 18.02.2022, 04.03.2022, 08.04.2022 and today. On going through the order sheet, it appeared the complainant is not interested to prosecute the case and the complainant did not appear before the court for the purpose of tendering himself for leading complainant evidence. Though complainant is represented through counsel he did not made personal attendance when it is necessary. Therefore, there is no ground made out to dispose of the presence of the complainant on this day. Therefore, as per 256(1) Cr.P.C this court is bound to acquit the accused from non-appearance of the complainant. Hence, this court passes following:
ORDER The complainant filed by the complainant is dismissed for non-prosecution.
Acting u/s.256(1) of Cr.P.C accused is acquitted for the o/p/u/s.138 of NI Act.-6- CRL.A No. 1488 of 2022
In view of the sec.437A of Cr.P.C. the bail bond of the accused stands extended for another 6 months from the date of this order."
7. It is evident from the said order that no representation was made on behalf of the complainant, though several opportunities were given to the complainant to lead his evidence. The complainant remained absent, when the matter is posted for recording his evidence on several occasions. The complainant has not adduced evidence, therefore, the Trial Court held that the complainant is not interested in prosecuting the appeal and thereby dismissed the complaint and acquitted the accused under section 256(1) of Code of Criminal Procedure (for short hereinafter referred to as Cr.P.C.).
8. I have perused the certified copy of the order sheet. The complaint came to be filed on 9.12.2014 and on the same day, learned JMFC took cognizance. Thereafter, the sworn statement of the complainant by way of an affidavit was filed on 13.04.2015. Then on 17.10.2015, learned JMFC, ordered to issue summons to the accused. The order sheet shows that the summons was issued to the accused on several times. Even learned JMFC ordered to issue hand summons to accused on -7- CRL.A No. 1488 of 2022 06.01.2017. Thereafter, it appears that the Presiding Officer was on training and case was adjourned on several occasions. Subsequently, notice was issued to complainant and he was present on 24.05.2017 and summons issued to the accused returned un-served on 27.06.2018, again on the same day summons was ordered to be reissued to the accused. The complainant paid the process fee and the summons was reissued on 06.12.2018. The same was awaited. Thereafter, again the Presiding Officer was transferred on 18.05.2019 and he was under
training on 03.07.2019. Again on the point of jurisdiction, vide order dated 14.11.2019, the case was transferred to the Jurisdictional Court. Again summons was issued to accused.
Thereafter, the case was not posted before the Court, due to Covid -19 and issuance of standard operating procedure (SOP) to hear the cases. Again summons was served to accused on 09.4.2021 and accused was granted bail by the Trial Court. Again in view of SOP, the matter was adjourned to 21.08.2021. Then on 01.09.2021, the case was advanced at the instance of the complainant for marking the document. The Court held that in view of Rule 2 of Chapter XIV of Karnataka Criminal Rule of Practice, the same mandates parties to the proceedings are entitle for copies of records including the exhibits. Hence, it is not -8- CRL.A No. 1488 of 2022 necessary to mark the document as exhibit for granting certified copy and the Trial Court directed to issue certified copy.
Thereafter, when the case was called on 04.10.2021, the accused remained absent and hence, NBW came to be issued to the accused and again on 06.11.2021 the accused appeared and NBW issued to the accused was recalled and the plea of the accused was recorded. Thereafter, on 09.12.2021, the accused was absent. On 14.01.2022 and on 18.02.2022, the accused remained absent. Then the accused remained absent continuously. Then on 08.4.2022, the accused was present and the complainant was absent and the case was adjourned to 06.05.2022. On 06.05.2022, the accused was present and the complainant was not present. Hence, the learned JMFC recording the absence of complainant, dismissed the complaint for non-prosecution.
9. From the perusal of the order sheet of the Trial Court, it is evident that it took nearly five years for the complainant to secure the presence of the accused. On several occasions, as ordered by the Trial Court, the complainant has served summons by hand and paid process fee, but the accused has not appeared before the Court. Thereafter, the hand summons was awaited and -9- CRL.A No. 1488 of 2022 the accused remained absent and hence, NBW came to be issued to the accused on 06.11.2021.
10. Admittedly, the complaint was filed for the offence under Section 138 of N.I. Act against the accused and the cheque amount involved is Rs.4,50,000/-. The order sheet dated 06.11.2021, reveals that on the date of recording of plea of the accused, the accused has stated that he has handed over cheque to complainant, in view of some transaction with regard to poultry business. The Trial Court without looking into the previous proceedings, dismissed the complaint. Therefore, looking into the nature of the order and the proceedings in my considered view, the order passed by the learned JMFC is not sustainable in law.
11. This Court in Crl.A.No.200033/202s dated 30.09.2022 in the case of Sri.Nagaraj and Sri. Ishwar considered the aspects regarding what should be the approach of the Trial Court while dismissing the complaint under Section 256 of Cr.P.C., and particularly when the offences involved under N.I. Act and where the amount involved is nearly a sum of Rs.4,,50,000/- and at paragraph Nos.10, 11 and 12 it is held as under:
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"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 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."
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CRL.A No. 1488 of 2022
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.
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 the mind, the exercise of power under appeal and the peculiar facts and circumstances of this case, and in view of Section 256 of Cr.P.C., in my considered view the appeal deserves to be allowed."
12. Therefore, in view of the nature of the proceedings and order sheet of the Trial Court, it discloses that non- appearance of the complainant may not be intentional or deliberate. There is absolutely nothing to show that deliberately the complainant remained absent. Learned counsel for the appellant also submitted that the complainant was suffering from Jaundice and he was taking treatment.
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CRL.A No. 1488 of 2022
13. Therefore, in view of the principles stated in the above decision, keeping in mind, the exercise of power under appeal, the peculiar facts and circumstance of this case, and in view of Section 256 Cr.P.C., and making justice oriented approach, in my considered view, the appeal deserves to be allowed.
14. Accordingly, I pass the following :
ORDER
i) The appeal is hereby allowed.
ii) The order dated 06.05.2022 passed in C.C.No.2136/2019 by III JMFC, Mysuru is hereby set aside. The C.C.No.2136/2019 is restored to the original file of III JMFC, Mysuru.
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 matter is of the year 2014, both the complainant and the accused shall present before the III JMFC Court, Mysuru without awaiting further notice on 13.03.2023.
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CRL.A No. 1488 of 2022
v) Learned counsel appearing for the respective parties, shall intimate the date of appearance to both the complainant and the respondent/accused.
vi) However, before the Trial Court, the complainant shall adduce his evidence without taking any further time and he must not try to postpone the adducing of evidence. If such dilatory tactics are adopted by the complainant, then the Trial Court is directed to proceed further for disposal of the complaint in accordance with law.
vii) Send back the records to the Trial Court.
viii) No order as to costs.
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JUDGE HJ List No.: 1 Sl No.: 23