Sri H R Jagadisha Vs Sri Hyder Ali

THIS CRL.A IS FILED UNDER SECTION 378(4) OF Cr.P.C. PRAYING TO SET ASIDE THE IMPUGNED ORDER OF DISMISSAL OF THE COMPLAINT UNDER SECTION 256 OF Cr.P.C. DATED 26.11.2021 AND RESTORE THE COMPLAINT FILED BY THE

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COMPLAINANT/APPELLANT IN C.C.No.45/2016 PENDING ON THE FILE OF PRINCIPAL CIVIL JUDGE AND J.M.F.C., THIRTHAHALLI AND ETC.,

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THIS APPEAL COMING ON FOR ORDERS THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR

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ORAL JUDGMENT

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This appeal is filed by the appellant – complainant praying to set-aside the order dated 26.11.2021 passed in C.C.No.45/2016 by the Principal Civil Judge and J.M.F.C., Thirthahalli and to restore the said criminal case.

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The appellant – complainant had initiated the proceedings against the respondent – accused for the offence under Section 138 of the Negotiable Instruments Act, 1881 (for short hereinafter referred to as ‘N.I.Act’), which was pending against the respondent – accused in C.C.No.45/2016. The appellant – complainant led evidence in the said criminal case and also examined two witnesses. When the case came to be posted for recording the statement under Section 313 of Cr.P.C, the respondent

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accused had remained absent and the learned

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Magistrate had issued the N.B.W. On 26.11.2021, the complaint came to be dismissed for default on the ground that, the N.B.W has not been executed by the appellant – complainant and a copy of the N.B.W has not been returned. The said order has been challenged by the appellant – complainant in the present appeal. As there is a delay of 572 days in filing the appeal, I.A.No.2/2023 has been filed by the appellant – complainant under Section 5 of the Limitation Act, seeking condonation of the said delay. Learned counsel for the respondent – accused has filed his statement of objections to the said application.

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Heard learned counsel for the appellant – complainant and learned counsel for the respondent – accused.

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Learned counsel for the appellant – complainant would contend that the respondent – accused had participated in the trial and he had remained absent when the case came to be posted for recording the statement under Section 313 of Cr.P.C. The Trial Court had issued

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the N.B.W to the respondent – accused and authorized the appellant – complainant to execute the N.B.W with the assistance of the jurisdictional police. He submits that as the appellant – complainant has not assisted the police and not executed the N.B.W, the complaint came to be dismissed by the learned Magistrate by order dated 26.11.2021. He further submits that it is the duty of the police to execute the warrant. Merely because the N.B.W has not been executed, the complaint of the appellant – complainant cannot be dismissed. He further submits that earlier, he had preferred the criminal revision petition and subsequently, on coming to know that it is not maintainable, he withdrew that and he has filed this criminal appeal and therefore, there is a delay in filing the present appeal. With this, he prayed for allowing the appeal.

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Learned counsel for the respondent – accused would

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contend that the appellant – complainant is not diligent in prosecuting his case. Even there is a delay in filing the

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criminal revision and also in filing the present appeal. The Trial Court has authorized the appellant – complainant to execute the N.B.W with the assistance of the jurisdictional police. The appellant – complainant did not execute the N.B.W and did not produce copy of the N.B.W on 26.11.2021 and noting the same, the complaint came to be dismissed for default. He submits that there are no grounds for setting aside the impugned order and condonation of delay and prayed for dismissal of the appeal.

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Having heard the learned counsels, the Court has perused the impugned order and the other materials placed on record.

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The respondent – accused was facing trial for the offence under Section 138 of the N.I.Act, in C.C.No.45/2016. The appellant – complainant led evidence and examined himself and the other two witnesses. When the case came to be posted for recording the statement of the respondent – accused, the respondent – accused had

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remained absent and to secure his presence, the learned Magistrate had issued the N.B.W against him. Inspite of issuance of the N.B.W, the respondent – accused has not been secured by the police. The respondent – accused has also not appeared subsequently. On 16.11.2021, the learned Magistrate had issued the N.B.W to the respondent – accused and authorized the appellant – complainant to execute the N.B.W with the assistance of the jurisdictional police. The appellant – complainant had paid the P.F., and the N.B.W came to be issued. The said N.B.W had not been executed. Noting the same, on 26.11.2021, the learned Magistrate has dismissed the complaint for default. It is the duty of the jurisdictional police to execute the N.B.W and secure the presence of the respondent – accused. It is the duty of the appellant – complainant to assist the jurisdictional police in executing the N.B.W issued against the respondent – accused. Merely because the appellant – complainant had not assisted the jurisdictional police in executing the N.B.W, his complaint cannot be dismissed for default and it is for

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the fault of the respondent – accused for not appearing in the said criminal case inspite of undertaking to appear while granting bail, the appellant – complainant cannot be punished by dismissal of his complaint. Considering the said aspect, the appellant – complainant has made out grounds for setting aside the impugned order and restoration of the said criminal case. The appellant – complainant earlier had filed the criminal revision petition and he withdrew it, as it was not maintainable and filed the present appeal.

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Considering the merits of the case and the reasons assigned, the delay in filing the appeal requires to be condoned and the appellant – complainant requires to be granted special leave to file the appeal. Accordingly, I.A.No.1/2023 and 2/2023 are allowed . The appellant – complainant has made out the grounds for setting aside the impugned order. The appeal also deserves to be allowed. In the result, the following;

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ORDER

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The appeal is allowed . The impugned order dated 26.11.2021 passed in C.C.No.45/2016 by the Principal

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Civil Judge and J.M.F.C, Thirthahalli is set-aside and the criminal case is ordered to be restored. The appellant – complainant and the respondent – accused are directed to appear before the Principal Civil Judge and J.M.F.C, Thirthahalli on 24.02.2025 , without awaiting for any Court notice.

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Sd/(SHIVASHANKAR AMARANNAVAR) JUDGE

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GH

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List No.: 1 Sl No.: 40

Sri H R Jagadisha v. Sri Hyder Ali

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Sri H R Jagadisha v. Sri Hyder Ali

Case brief

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