(Prayer: This Criminal Appeal is filed Under Section 378(4) of Cr.P.C., praying to set aside the impugned judgment and order dated 23.08.2019, passed by the Prl. Senior Civil Judge & JMFC, Mudhol, in Cc No.634/2017 and consequently remand it to the file of Addl. Senior Civil Judge & JMFC Court, Mudhol, for the offence punishable under Section 138 of NI Act, etc.,)1. Though this appeal is listed for admission, with consent of both the parties, the matter is taken up for final disposal.2. Heard Sri R.H.Angadi, learned counsel appearing on behalf of appellant and Sri Shrishail M.Jatti, learned counsel appearing on behalf of respondent.3. Brief facts leading to filing of this appeal are that, the appellant is the Complainant before the trial Court and had initiated a Complaint under Section 138 and 143 of the Negotiable Instruments Act (for short ‘NI Act’) against the respondent herein. The appellant is an Organization duly registered under the Indian Companies Act, 1956 and is carrying its business in the name and style as M/s Sri Ram Finance Co. Ltd, having its registered office at Chennai. It has got a branch at Mudhol and is represented by its Product Executive (Legal) of the concerned Branch. It is stated that the respondent had availed financial facility from the appellant to purchase TATA ACE vehicle bearing Registration No.KA48/ 2320 and accordingly the respondent after accepting financial facility had executed loan-cum-hypothecation agreement bearing No. MDOLBO 407230003 at Mudhol Branch along with relevant documents. Respondent did not repay the amount as agreed, he due to the tune of Rs.2,70,000/- towards repayment of installments, for which respondent issued cheque bearing No.101708 dated 07.09.2017 drawn on Axis Bank, Saidapur Branch for a sum of Rs.2,70,000/-. Appellant presented the said cheque for encashment on 02.09.2017 through its banker. The said cheque came to be dishonoured with an endorsement ‘Account closed’.4. Pursuant to dishonour of the cheque appellant got issued legal notice which was duly served on the respondent, but respondent failed to pay any amount demanded as per legal notice nor replied to the legal notice. In view of non-payment of the amount demanded, appellant filed a complaint before the Prl. Senior Civil Judge and JMFC, Mudhol for the offence punishable under Section 138 of the NI Act. After cognizance was taken by the learned trial Judge a criminal case came to be registered in CC No.634/2017.5. After recording the sworn statement the trial Court proceeded to issue summons, since the same was not accepted by the respondent, NBW came to be issued and after granting several opportunity for taking steps despite issuance of NBW, the appellant continued to take out fresh process on the very same address, which was not being served on the respondent. On 23.08.2019, trial Court passed the following order:“Complainant absent. Sri YKJ for SCU prays time for steps no grounds made out. Further furnish PF and prayed to reissue NBW to the accused at the very same address. On 26.02.2019 NBW was issued to the accused at the very same address but is returned as since last 1 year accused left the address. Now by once again reissuing NBW to the accused at the very same address no purpose will be served by reissuing NBW to very same address. Hence prayer of Sri YKJ is rejected complaint is dismissed for non prosecution.”Aggrieved by the said order appellant has approached this Court for setting aside the dismissal order.6. Heard the learned counsel for appellant and learned counsel for the respondent.7. The learned counsel for the appellant contends the GPA Holder of the appellant company is the only person authorized to appear in various cases to adduce evidence and in that process the appellant was prevented to appear before the trial Court to lead evidence. Thereafter the trial Court provided an opportunity to the appellant to lead evidence and when they sought time, the trial Court rejected the same. In the present case, though the summons was issued to the respondent on the address as mentioned by the respondent in the loan agreement, the same could not be served because the respondent was evading service of summons. Despite issuance of NBW, the respondent was deliberately avoiding the notice and the jurisdictional police were unable to secure the presence of the respondent. Appellant was left with no other alternative but to take out process for NBW on the very same address, which came to be dismissed by the learned trial Judge on the ground that the appellant was seeking to reissue NBW to the respondent on the very same address and from the past one year and it would not serve any purpose by issuing the summons on the very same address. Accordingly, the dismissal of the complaint by the learned trial Judge is erroneous and perverse. It is further contended by the learned counsel for the appellant that the order passed by the learned trial Judge is arbitrary and capricious. The trial Court ought to have provided one more opportunity for the appellant to secure the correct address in order to effectively adjudicate the matter before the trial Court. On this ground the learned counsel for the appellant prays to allow the appeal.8. Per contra, the learned counsel for the respondent opposed the prayer sought for by the appellant. He contends that sufficient opportunity was given to the appellant to take out notice and secure the presence of the respondent before the trial Court but the same was not availed by the appellant and no fault could be found with the respondent for inability of the appellant to secure the presence of the respondent. Accordingly, he seeks for dismissal of the appeal.9. After hearing both the parties, it is seen that respondent has appeared before this Court and is represented through a learned counsel. Therefore, the respondent, who was not being served before the trial Court is effectively represented through a counsel before this Court. In view of the fact that the respondent is represented through a learned counsel, the task would become easier to direct the parties to appear before the trial Court for adjudication of the matter on merits. This Court is also of the considered opinion that before dismissing the matter for non-prosecution, the trial Court is duty bound to provide an opportunity to the appellant where the address and the presence of the respondent becomes a difficult task for securing the respondent. In the case on hand, it is seen that no proceedings is yet commenced except taking cognizance of the case as the presence of the respondent was not secured. This court is of the opinion that if an opportunity is given to the appellant to put forth his case before the trial Court and establish the same in accordance with law, it would meet t
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he ends of justice.10. In the light of the above, the appeal is allowed. The order dated 23.08.2019 passed in CC No.634/2017 by the Addl. Senior Civil Judge and JMFC, Mudhol is set aside. The matter is remitted to the trial Court to dispose of the case as expeditiously as possible by providing full opportunity to both the appellant and the respondent. Both parties are directed to appear before the said Court on 4th November 2020 without waiting for further notice or summons from the trial Court. It is needless to mention that this Court has not expressed any opinion on the merits of the case. Parties are at liberty to produce all necessary documents in support of their case and trial Court is directed to dispose of the matter in accordance with law.