Allowed

Nagaraj S/O. Gangadhar Fattepur v. Ratnakar S/O Ganapathi Hegade

Karnataka HC1 Jun 2023CRL.A/100038/2020

Case brief

AI extract

What is this about?

High Court of Karnataka allowed criminal appeal filed under Section 378(4) Cr.P.C. against dismissal of cheque dishonour case for non-prosecution. Court held that order lacked requisite reasoning and set aside dismissal, remanding matter to trial court for disposal.

What did the court decide?

Impugned order of dismissal set aside; appellant to pay Rs. 5,000 cost; parties directed to appear before Trial Court on 03.07.2023 for trial.

Nagaraj S/O. Gangadhar Fattepur Vs Ratnakar S/O Ganapathi… — Cheque Dishonour | Karnataka HC (2023)

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1 - CRL.A No. 100038 of 2020

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IN THE HIGH COURT OF KARNATAKA

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DHARWAD BENCH

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DATED THIS THE 1^ST DAY OF JUNE, 2023

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BEFORE

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THE HON'BLE MR JUSTICE ANIL B KATTI CRIMINAL APPEAL NO. 100038 OF 2020 (A-)

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BETWEEN:

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NAGARAJ S/O. GANGADHAR FATTEPUR, AGE: 47 YEARS, OCC: AQUA GUARD BUSINESS, R/O: BAILAPPANAVAR NAGAR, HUBBALLI-580029, DIST: DHARWAD

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…APPELLANT

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(BY SRI. SHRIHARSH A. NEELOPANT, ADVOCATE)

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AND:

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Digitally signed by J MAMATHA JMAMATHA Date: 2023.06.08 13:17:21 - 0700

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RATNAKAR S/O. GANAPATHI HEGADE, AGE: 52 YEARS, OCC- HOTEL BUSINESS, R/O-KOPPIKAR ROAD, HUBBALLI-580020, DIST: DHARWAD

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…RESPONDENT

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(BY SRI. S. S. NIRANJAN, ADVOCATE)

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THIS CRIMINAL APPEAL IS FILED U/S 378 (4) OF CR.P.C., PRAYING TO SET ASIDE THE IMPUGNED ORDER DATED 11/07/2019 PASSED IN CC NO.372/2017 PASSED BY THE JMFC-II COURT, HUBBALLI, AT HUBBALLI, FOR OFFENCE P/U/SEC. 138 OF N.I. ACT, DISMISSING THE CASE FOR NON-PROSECUTION AS PER ANNEXURE-A AND DIRECT THE JMFC-II COURT, HUBBALLI, AT HUBBALLI, DISPOSE OFF THE CASE BEARING CC NO.372/2017 FILED

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2 - CRL.A No. 100038 of 2020

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BY THE APPELLANT ON MERITS AFTER GIVING OPPORTUNITY TO THE APPELLANT.

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THIS CRIMINAL APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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Appellant/accused feeling aggrieved by dismissal of

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complaint for non-prosecution on the file of JMFC II Court, Hubballi, in C.C.No.372/2017 dated 11.07.2019, preferred this appeal.

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Heard the arguments of both sides.

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On perusal of records, it would go to show that complainant has filed private complaint under Section 200 of Cr.P.C for the offence punishable under Section 138 of NI Act, on the file of JMFC II Court, Hubballi. The trial Court by order dated 18.01.2017 took cognizance for the offence punishable under Section 138 of NI Act and ordered to issue summons to the accused. On 04.07.2017 accused appeared before Court and he was released on bail. Thereafter, the matter was adjourned from time to time for the evidence of complainant. On 11.07.2019, trial

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3 - CRL.A No. 100038 of 2020

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Court noting the absence of complainant and his counsel dismissed the case for non-prosecution.

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Learned counsel for the respondent submitted that trial Court has given sufficient opportunity to complainant for leading his evidence. However, the complainant has not chosen to lead any evidence. Therefore, no any justifiable grounds have been made out by the complainant for seeking opportunity to prosecute the case.

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Per contra, learned counsel for the appellant submits that when once cognizance is taken by the trial Court, the complaint cannot be dismissed for nonprosecution and trial has to be conducted.

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On perusal of order sheet, it would go to show that after accused appeared before trial Court on 04.07.2017 till dismissal of complaint on 11.07.2019, the complainant has not chosen to adduce the evidence. The matter was adjourned either for want of presence of complainant or accused. Trial Court on some occasion has

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4 - CRL.A No. 100038 of 2020

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issued NBW against accused. When the offence under Section 138 of NI Act is to be tried as summons case, than the procedure contemplated in terms of Chapter XX of the criminal procedure code from Sections 251 to 259 has to be followed. Consequences of non-appearance of complainant will follow in terms of Section 256(1) of Cr.P.C.

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The dismissal of complaint for non-appearance of complainant is in terms of Section 256(1) of Cr.P.C., which has the result of acquitting the accused for the offence punishable under Sections 138 of N.I.Act. Whether the absence of complainant before the Trial Court when he was represented by the counsel can be termed as person not interested in prosecuting the case?. When complainant is represented by advocate, the personal attendance of complainant is not necessary and the magistrate may dispense with the attendance of complainant and proceed with the case.

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5 - CRL.A No. 100038 of 2020

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In this context, it is useful to refer judgment of

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Hon’ble Apex Court in Associated Cement Company

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V/s. Keshavanand reported in (1998) 1 SCC 687 , wherein it has held that:

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"Proviso to Section 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, he does not mean that if the complainant is absent, the Court has duty to acquit the accused. It has been further held in the said judgment that the discretion under Section 256 of Cr.P.C. must be exercised judicially and fairly without impairing cause of administration of criminal justice."

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In another judgment of Apex Court in Azeem V/s. Venkatesh and another reported in (2002) 7 SCC 726 , it has been held that 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 principles

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6 - CRL.A No. 100038 of 2020

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enunciated in both the decision referred above, it is evident that effect of dismissal of complaint in default, the Magistrate is suppose to exercise his discretion with care and caution by clearly mentioning in the order sheet that there was no reason for him to think it proper to adjourn the hearing of the case for some other day.

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In the present case no any such reasons have been recorded. When the complainant has prosecuted the case and Court has taken cognizance for the offence punishable under Section 138 of NI Act. Therefore, under these circumstance, it cannot be held that the complainant is not interested in prosecuting the case.

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Learned counsel for the respondent is justified in submitting to put the complainant on terms in prosecuting the case, since the matter relates to the year of 2017. The submission appears to be quiet reasonable and justifiable in view of the facts and circumstances of the case. Consequently, proceed to pass the following:

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7 - CRL.A No. 100038 of 2020

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ORDER

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Appeal filed by the appellant/complainant is hereby allowed.

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The order of trial on the file of JMFC II Court Hubballi, in C.C.No.372/2017, dated 11.07.2019 is hereby set aside.

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The appellant/complainant shall pay cost of Rs.5,000/- to respondent/accused.

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In ordered to void further delay in the matter and the parties having been already represented through counsel in this case and they are directed to appear before the trial Court on 03.07.2023, without there being any notice. The trial Court shall proceed to dispose of the matter in accordance with law as expeditiously as possible.

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(Sd/-) JUDGE

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Nagaraj S/O. Gangadhar Fattepur v. Ratnakar S/O Ganapathi Hegade

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Nagaraj S/O. Gangadhar Fattepur v. Ratnakar S/O Ganapathi Hegade

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