At, High Court of Karnataka
By, THE HONOURABLE MR. JUSTICE B.A. PATIL
For the Appellant: Krishna Pratap Singh, S.V. Giridhar, Advocates. For the Respondents: --------
(Prayer: This Criminal Appeal is filed under Section 378(4) of Cr.P.C praying to set aside the judgment dated 29.01.2018 passed by the XXVI ACMM, Bengaluru, in C.C.No.24275/2014, acquitting the respondent/accused for the offence punishable under Section 138 of Negotiable Instruments Act.)1. This appeal is filed by the complainant being aggrieved by the order dated 29.1.2018 passed by the XIV Additional Small Causes Judge and XXXIX Additional CMM(SCCH-10), Bengaluru dismissing the complaint for default.2. I have heard the learned counsel for the appellant. Since the accused has not appeared before the Court below the complainant-appellant herein had filed a memo for dispensation of notice to the respondent-accused and in view of the said memo, notice to respondent was dispensed with vide order of this Court dated 22.11.2018.3. It is the submission of the learned counsel for the appellant that the appellant filed a private complaint under Section 138 of N.I. Act. The case was pending before the XXVI Additional CMM Court, Bengaluru. The said Court took cognizance of the offence and registered the case in CC.No.24275/2014. Thereafter, notice was issued to the accused, but the said notice was not served on him. The order sheet dated 2.6.2015 shows that RPAD was unserved and again the case was posted for taking steps. It is his further submission that on 16.1.2018, the said case was transferred to Additional CMM, SCH-10 by virtue of the notification and the said fact was not within the knowledge of the complainant- appellant herein and as such he has not appeared before the Court below and the Court below without giving full opportunity and by violating the principles of natural justice has erroneously dismissed the complaint on 29.1.2018. It is his further submission that he has paid PF and RPAD covers and in spite of the same, the notice has not been served on the accused. The Court below has wrongly observed that the complainant has no interest to proceed in the matter and no sufficient reasons are made out to adjourn the case. On that ground, the complaint has been dismissed. He further submitted that if the said complaint is not registered, the complainant may be put to greater hardship. On these grounds, he prayed to allow the appeal and to set aside the impugned order and requested to remand the matter back to the Court below for fresh consideration.4. I have carefully and cautiously gone through the submissions of the learned counsel for the appellant and perused the typed copy of the order sheet which is made available before this Court by the leaned counsel for the appellant and also the certified copy of the entire order sheet.5. The entire order sheet indicates that a private complaint was registered before the XXVI Additional CMM Court, Bengaluru and time and again it is adjourned for service of notice on the accused. But on 16.1.2018 as per notification No.ADM.1.19/17, dated 20.11.2017, the said case has been transferred SCH.10 ACMM, Bengaluru. Thereafter the said case has been called before the Court on 25.1.2018. Again it was adjourned to 29.1.2018 for taking steps. on 29.1.2018, the impugned order came to be passed dismissing the complainant for default.6. The contention taken up by the appellant appears to be just and proper. Admittedly, the said case has been transferred and only by giving one opportunity to the complainant, on the next date of hearing, the complaint has been dismissed. The principles of natural justice have not been followed by the Court below. Though the case has come up for the second time on 29.1.2018 the Court below has come to the conclusion that the complainant has no interest to proceed with the matter. But the order sheet discloses the fact that PF and other material have been furnished for issuance of the notice to the accused. Under such facts and of the circumstances of the case, I feel that one more opportunity has to be given to the complainant in this behalf.7. In the light of the above discussio
Please Login To View The Full Judgment!
n, the appeal is allowed. Impugned order of the Court below, dated 29.1.2018 is set aside and the matter is remanded back to the Court below to proceed in accordance with law by giving full opportunity to both the parties.The complainant-appellant herein is directed to appear before the Court below without awaiting further notice of the trial Court on 23.9.2019 and he has to take immediate steps to serve the notice on the accused- respondent.