(Prayer: This Criminal Appeal is filed under Section 378(4) of Cr.P.C. praying to set aside and dated 11.01.2018, passed by the Additional Civil Judge and JMFC, Madikeri in C.C.No.643/2016, acquitting the respondent/accused for the offence P/U/S 138 of N.I Act.)1. This appeal is filed by the complainant in C.C.No.643/2016 on the file of the Principal Civil Judge and JMFC, Madikeri, against the impugned order dated 11.01.2018, wherein the complaint filed by him against the respondent for the offence punishable under Section 138 of Negotiable Instruments Act, 1881, came to be dismissed for non-prosecution.2. I have heard the learned counsel appearing for the complainant and the learned counsel appearing for the respondent.3. It is the complainant's case that the cheque bearing No.023190 dated 29.11.2014 for a sum of Rs.1,00,000/- drawn on Federal Bank, Kushal Nagar Branch was issued to him by the accused in discharge of his legal liability and the said cheque when presented to the bank for encashment, it was dishonored with an endorsement "insufficient funds" on 13.02.2014. Hence, a legal notice dated 15.12.2014 was issued and inspite of receipt of the said notice, the accused failed to make payment.4. The trail Court by an order dated 11.01.2018 dismissed the complaint for non-prosecution observing that though sufficient opportunities were offered, the complainant has not appeared before the Court to tender evidence.5. The learned counsel for the appellant submits that the complaint was filed in the year 2015 on the file of Principal Civil Judge and JMFC, Somwarpet, Kodagu on 24.03.2016, the case was transferred to the Civil Judge and JMFC, Madikeri and it came to be transferred on 04.04.2017 to the Court of the Principal Civil Judge JMFC, Madikeri. Plea of the complainant was recorded on 27.09.2017 and the matter was referred to Lok-Adalath. The matter was not settled and it was referred back to the Court and the case was adjourned on 07.11.2017 to 29.11.2017. On the said date, it was again adjourned since the Presiding officer was transferred. Thereafter on 11.01.2018, when the case was called, the complainant could not be present. Hence, the complaint came to be dismissed for non-prosecution. He submits that non appearance of the complainant is not intentional and he may be given one more opportunity to conduct the case. Accordingly, he seeks to allow the appeal.6. Per contra, the learned counsel for the respondent submits that the complainant has remained absent on several occasions and therefore, the trial Court has rightly dismissed the complaint. Accordingly, he seeks to dismiss the appeal.7. Perusal of the order sheet shows that the complainant remained absent on several occasions. However, even the accused had also remained absent. The order sheet further discloses that initially, the complaint was filed on the file of Principal Additional Civil Judge and JMFC, Somwarpet, Kodagu on 17.01.2015. The case was transferred to Civil Judge and JMFC, Madikeri on 24.03.2016. Thereafter on 04.04.2017, the entire records were transferred to the Principal Civil Judge, JMFC, Madikeri. Subsequently, accused remained absent. The execution petition was rejected and NBW was issued, which was recalled on imposing a penalty of Rs.500/- (Rupees Five Hundred only). Subsequent dates go to show that both the complainant and his learned counsel were absent. On 29.11.2017, the Presiding Officer was transferred. Hence, the case was adjourned to 11.02.2018, on which day the complaint came to be dismissed for non- prosecution, since both the complainant and learned counsel were absent.8. The learned counsel appearing for the appellant submits that non-appearance of the complainant and his counsel before the trial Court is un-intentional. Henceforth, the complainant will be diligent in prosecuting the complaint and therefore, he may be given an opportunity.9. Considering the entire facts and circumstances of the case and also the submission by the learned counsel for the appellant, I deem it appropriate to allow the appeal, to meet the ends of justice by imposing a cost of Rs.3,000/- (Rupees Three Thousand Only) on the appellant, which shall be deposited by the complainant before the District Legal Services Authority, Madikeri within a period of three weeks from today. A copy of the receipt shall be produced before the tri
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al Court. Subject to the same, the complaint shall be restored to its file. Hence the following order:The appeal is allowed. The order dated 11.01.2018 in C.C.No.643/2016 on the file of the Principal Civil Judge and JMFC, Madikeri, is set aside. The learned Magistrate is directed to restore the complaint on its file and shall proceed in accordance with law.The parties are directed to appear before the trial Court on 02.03.2020 and on subsequent dates, as directed by the trial Court.