S Nagaraj S/O Late Rangaswamy Vs Smt Shan Khatoon W/O Mohammed Riyaz

THIS CRIMINAL APPEAL IS FILED UNDER SECTION 419 (4) OF BNSS, 2023, PRAYING TO ALLOW THIS CRIMINAL APPEAL AND BE PLEASED TO RESTORE THE CASE IN C.C.NO.426/2022 FILED BEFORE THE II ADDL. CIVIL JUDGE AND JMFC COURT AT BALLARI AND SET-ASIDE THE ORDER OF THE TRIAL COURT IN C.C.NO.426/2022 DATED 04.12.2024 ON THE FILE OF THE II ADDL. CIVIL JUDGE AND JMFC COURT AT BALLARI FOR THE OFFENCES PUNISHABLE U/S 138 OF NEGOTIABLE INSTRUMENTS ACT, 1881, IN THE INTEREST OF JUSTICE AND EQUITY. GRANT ANY OTHER RELIEF AS THIS HON’BLE COURT DEEMS FIT ON THE FACTS CIRCUMSTANCES OF THE CASE IN THE ENDS OF JUSTICE AND EQUITY.

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THIS CRIMINAL APPEAL, COMING ON FOR ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR

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NC: 2025:KHC-D:4263 CRL.A No. 100018 of 2025

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ORALJUDGMENT

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This appeal is filed by the complainant praying to set aside the order dated 04.12.2024 passed in C.C.No.426/2022 by the II Additional Civil Judge and JMFC, Ballari wherein the complaint of the appellant – complainant came to be dismissed for non-prosecution and the respondent –accused has been acquitted.

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Heard learned counsel for the appellant –

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complainant. Inspite of service of notice, the respondent – accused remained absent and unrepresented.

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The appellant –complainant has initiated proceedings against the respondent –accused for offence punishable under Section 138 of the Negotiable Instruments Act, 1881 and it was pending in C.C.No.426/2022 on the file of the II Additional Civil Judge and JMFC, Ballari. The said case was listed on 04.12.2024 for complainant’s evidence. On that day noting absence of the appellant –complainant, the learned Magistrate has dismissed the complaint for non-prosecution and acquitted

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NC: 2025:KHC-D:4263 CRL.A No. 100018 of 2025

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the respondent –accused. The said order has been challenged in this appeal by the appellant –complainant.

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Learned counsel for the appellant –complainant would contend that the appellant was suffering from “Chronic Allergic Bronchities” since from 15.06.2023 and therefore, he could not appear on the date of the – impugned order. The absence of the appellant complainant on the date of the impugned order is for bonafide reasons. With this, he prays to allow the appeal and restore the Criminal Case No.426/2022.

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Having heard learned counsels, this Court has perused the materials placed on record.

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The criminal case is listed on 04.12.2024 for leading complainant’s evidence. On that day, the complainant was absent and noting the same, the learned Magistrate has dismissed the complaint for nonprosecution and acquitted the respondent -accused. In the appeal memo, the appellant –complainant has stated that

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NC: 2025:KHC-D:4263 CRL.A No. 100018 of 2025

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he is suffering from “Chronic Allergic Bronchities” since from 15.06.2023 and therefore, he could not present himself on the date of the impugned order before the trial Court.

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Learned counsel for the appellant –complainant

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has produced a copy of medical certificate issued by Dr. Y. Vishwanath wherein it is certified that the appellant – complainant was suffering from “Chronic Allergic Bronchities” since from 15.06.2023 and he is under regular medical check up and medication to restore from his illness.

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The absence of the appellant –complainant on the date of the impugned order is for bonafide reasons. The cheque which has been drawn was for Rs.1,50,000/(Rupees One Lakh Fifty Thousand Only). Considering the said aspect, the learned Magistrate ought to have given another opportunity to the complainant to lead evidence. Considering the above aspects, the appellant has made

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