Karnataka High Court
The Managing Director vs Vilas S/O Baburav Munde on 10 April, 2023
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CRL.A No. 100078 of 2020
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 10TH DAY OF APRIL, 2023
BEFORE
THE HON'BLE MR JUSTICE ANIL B KATTI
CRIMINAL APPEAL NO. 100078 OF 2020 (A-)
BETWEEN:
THE MANAGING DIRECTOR,
RAITAR SAHAKARI SAKKARE KARKHANE NIYAMIT,
RANNANAGAR, TIMMAPUR,TQ: MUDHOL,
DIST: BAGALKOTE,
REP: BY ASHOK S/O VENKAPPA MORAB,
AGE: 59 YEARS, OCC: MANAGING DIRECTOR,
R/O: RANNANAGAR, TIMMAPUR, TQ: MUDHOL,
DISTRICT BAGALKOTE.
...APPELLANT
(BY SMT. RUKMINI M. PATIL FOR
SRI. SRINIVAS B. NAIK.,ADVOCATE)
Digitally signed
by J MAMATHA AND:
Location: HIGH
COURT OF
J KARNATAKA, VILAS S/O BABURAV MUNDE
MAMATHA DHARWAD
BENCH, AGE: MAJOR, OCC: CONTRACTOR,
DHARWAD.
Date: 2023.04.21
10:57:12 +0530
R/O: CHARDARI, TQ: DHARUR, DISTRICT: BEED-431124,
STATE MAHARASHTRA.
...RESPONDENT
(NOTICE TO RESPONDENT IS DISPENSED WITH)
THIS CRIMINAL APPEAL IS FILED U/S 378 (4) OF CR.P.C.,
PRAYING TO SET ASIDE ORDER OF DISMISSAL OF
COMPLAINT FOR NON-PROSECUTION DATED 07/12/2019 IN
CC NO.378/2017 ON THE FILE OF PRL. SENIOR CIVIL JUDGE
AND JMFC, MUDHOL, REGISTERED FOR THE OFFENCES
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CRL.A No. 100078 of 2020
PUNISHABLE UNDER SECTION 138 OF NEGOTIABLE
INSTRUMENTS ACT, AND RESTORE THE COMPLAINT ON ITS
FILE.
THIS CRIMINAL APPEAL, COMING ON FOR FINAL
HEARING, THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
Appellant/complainant feeling aggrieved by the order passed by Prl. Senior Civil Judge and JMFC, Mudhol, in C.C.No.378/2017 dated 07.12.2019 preferred this appeal.
2. Parties to the appeal are referred with their ranks as assigned in the trial Court for the sake of convenience.
3. The factual matrix leading to the case of complainant can be stated in nutshell to the effect that complainant has filed private complaint under Section 200 Cr.P.C. for the offence punishable under Section 138 of the Negotiable Instruments Act (for short 'the N. I. Act'). The trial Court by its order dated 06.09.2017 being prima facie satisfied with the material placed on record took cognizance of the offence punishable under Section 138 of the N. I. Act and ordered for issuance of summons by order dated 06.09.2017. Thereafter, matter was posted from time to time for taking steps to secure the presence of accused before the Court and -3- CRL.A No. 100078 of 2020 the summons was not served. The trial Court by order dated 18.07.2019 has ordered to issue NBW against accused. The same was not executed and trial Court on 07.12.2019 by taking note of the absence of complainant and his counsel, dismissed the complaint for non-prosecution.
4. In view of their being sufficient gap from the date of filing complaint and ordering for issuance of summons to accused, this Court has ordered for securing TCR and the same was secured.
5. Heard the arguments of Ms. Rukmini Patil, learned counsel representing Shri Srinivas B. Naik, for the appellant.
6. On careful perusal of the trial Court records, it would go to show that originally the complaint was filed by the complainant before the JMFC, Dharur, on 10.12.2014. The said Court by order dated 07.04.2016 on the point of jurisdiction has ordered to transfer the complaint to the jurisdictional Court at Mudhol, within a period of 30 days. Thereafter, the complaint was re-presented on 05.05.2016 i.e., within a period of 30 days in compliance with the order of the JMFC, Dharur. -4- CRL.A No. 100078 of 2020
7. The complaint allegations would go to show that the services of accused who was a contractor was engaged for supply of harvesting labourers to cut sugarcane to various sugar factories in Maharashtra and Karnataka for the season 2011-12 and accordingly, the complainant entered into an agreement with accused. On the date of agreement, the complainant has paid in installments i.e., an amount of Rs.1,25,000/-, Rs.1,00,000/- and Rs.75,000/-. Thus, accused in all has received Rs.3 lakhs from complainant for supplying labourers to harvest the sugar cane during harvesting season. However, accused did not honour the agreement. Hence, the complainant demanded the amount back. Accused in lawful discharge of his debt has issued cheque bearing No.0426787 for Rs.80,797/-. The said cheque on its presentation was dishonoured for want of sufficient funds in the account of accused.
8. The trial Court by its order dated 06.09.2017 on being prima facie satisfied with the material placed on record by the complainant took cognizance of the offence and ordered to issue summons to secure the presence of accused before the trial Court. The summons was not served. The trial Court on -5- CRL.A No. 100078 of 2020 18.07.2019 has ordered to issue NBW and the same was not executed. However, the trial Court after noticing the absence of complainant and his counsel on 07.12.2019, has proceeded to dismiss the complaint for non-prosecution.
9. When once the proceedings took place under Section 138 of N.I.Act is to be tried as summons case, then the procedure contemplated in terms of Chapter XX of Criminal Procedure Code from Sections 251 to 259 Cr.P.C. has to be followed. The consequence of non-appearance of complainant will follow in terms of Section 256 (1) of Cr.P.C. The Court while exercising the powers under Section 256 Cr.P.C. has to take into consideration all the attending circumstances and record its reasonings that grant of further adjournment is not desirable in view of the facts and circumstances of the case and then judicially to exercise the power under Section 256 of Cr.P.C.
10. The dismissal of complaint for non-appearance of complainant is in terms of Section 256(1) of Cr.P.C., has the result of acquitting the accused for the offence punishable under Sections 138 of N.I.Act. Whether the absence of -6- CRL.A No. 100078 of 2020 complainant before the Trial Court when he was represented by the counsel can be termed as person not interested in prosecuting the case.
11. In this context of the matter, it is useful to refer to the decision of Hon'ble Apex Court in ASSOCIATED CEMENT COMPANY VS. KESHAVANAND reported in (1998) 1 Supreme Court Cases 687, wherein it has been held that the proviso 256 of Cr.P.C, though affords some deterrence against dilatory tactics on the part of the complainant, who set the law into motion through his complaint, but at the same time, it does not mean that if the complainant is absent, the Court has duty to acquit the accused.
12. In another decision of Hon'ble Apex Court in AZEEM VS. VENKATESH AND ANOTHER reported in (2002) 7 Supreme Court Cases 726, it has considered dismissal of the complaint on account of one singular default in appearance on the part of the complainant as a very strict and unjust attitude, resulting in failure of justice. In view of the principles enunciated in both the decisions referred above, it is evident that looking to the effect of dismissal of default, the Magistrate -7- CRL.A No. 100078 of 2020 is suppose to exercise his discretion with care and caution by clearly mentioning in the order that there was no reason for him to think it proper to adjourn the hearing of the case to some other day.
13. In the present case, the only reason that has been recorded by the trial Court is that complainant is not interested in prosecuting the case. Hence, the complaint is dismissed for non-prosecution. It is pertinent to note that the order dated 07.12.2019 would go to show that counsel for complainant has made representation to the Court and sought time to furnish T/A but the same was rejected. However, proceeded to hold that complainant is not interested in prosecuting the case. The order-sheet of the trial Court would reveal that complainant has made reasonable efforts to secure presence of accused before the Court. Indisputably, the complainant is represented through counsel. Therefore, presence of the complainant on every date of hearing is not necessary. Looking to the stage of the case, it is evident that the presence of complainant before the Court was essentially to prosecute the complaint. Therefore, under these circumstances, in my considered opinion, the trial Court has not exercised its judicial discretion -8- CRL.A No. 100078 of 2020 in a proper and perspective manner in dismissing the complaint for non-prosecution and the same cannot be legally sustained. Therefore, interference of this Court is required. Consequently, to pass the following:
ORDER Appeal filed by appellant/complainant is allowed. The impugned order under appeal dated 07.12.2019 in C.C.No.378/2017 on the file of Senior Civil Judge and JMFC, Mudhol, is hereby set aside.
The matter is remanded to the trial Court for disposal of the same from the stage where the case was dismissed for non-prosecution.
The complainant and learned counsel are directed to appear before the trial Court on 25.05.2023.
(Sd/-) JUDGE JM/-List No.: 1 Sl No.: 25