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Karnataka High Court · body

2020 DIGILAW 640 (KAR)

B. Abdul Aziz v. B. J. Manaver Aslam

2020-03-05

MOHAMMAD NAWAZ

body2020
JUDGMENT 1. This appeal is preferred by the complainant in C.C.No.439/2016 on the file of the J.M.F.C (III Court), Shimoga seeking to set aside the impugned order dated 07.10.2017, whereby the learned Magistrate dismissed the complaint for non-prosecution. 2. Though respondent/accused is served, he is not represented. 3. It is the case of the complainant that to discharge a part of debt, accused issued a cheque bearing No.128025 dated 13.04.2015 for a sum of Rs.3,50,000/- drawn on Karnataka Bank, Shimoga main Branch, Shimoga and when the said cheque was presented through his banker, the same was dishonored with shara 'Funds Insufficient' vide endorsement dated 18.04.2015. Inspite of issuance of notice to the accused, he failed to either reply to the notice or to repay the amount mentioned in the cheque within the stipulated time. Hence, the accused committed an offence under Section 138 of Negotiable Instruments Act, 1881. 4. It is submitted by the learned counsel for appellant that upon issuance of summons to the accused, he appeared before the trial Court. Thereafter, the complainant was examined as PW-1, on 18.04.2017 and Ex.P1 to Ex.P10 were marked. On the very same day, respondent filed an application under Section 145(2) of the N.I Act and learned Magistrate without recording the reason, allowed the application and without issuing any summons to the complainant, posted the matter for cross-examination of PW-1. On the next date of hearing, since the complainant was absent, the trial Court discarded the evidence of the complainant and proceeded to dismiss the complaint for non-prosecution. 5. The learned counsel for the appellant submits that against the aforesaid impugned order passed by the learned Magistrate, inadvertently a revision Petition was filed numbered as Crl.R.P.No.101/2018 on the file of III Additional, Session Judge, Shimogga, which was dismissed as not maintainable vide order dated 27.02.2018. 6. The learned counsel further submits that the trial Court has failed to follow the procedure contemplated under law and without recording the reasons, allowed the application and posted the matter for cross-examination, which is illegal and improper. He further submits that non-appearance of the complainant was not intentional but for bonafide reasons and prays to provide one more opportunity to the complainant to prosecute his complaint. 7. He further submits that non-appearance of the complainant was not intentional but for bonafide reasons and prays to provide one more opportunity to the complainant to prosecute his complaint. 7. Perusal of the order sheet goes to show that the learned Magistrate after observing that already sufficient opportunity was given to the complainant (PW-1) but he did not tender himself for cross examination, has proceeded to discard the evidence of PW.1 and dismissed the complaint for non-prosecution. 8. The complainant who was examined as PW-1 ought to have tendered himself for cross-examination. When the application filed by the accused under Section 145(2) of N.I.Act was allowed on 18.04.2017, the complainant was very much present, hence the next date of hearing was within his knowledge. Still he remained absent on the subsequent dates. Hence, having no other option, the learned Magistrate has dismissed the complaint. However, considering that the chief examination of the complainant has already been concluded and he has marked certain documents and considering the facts and circumstances of the case and also to meet the ends of justice, I deem it appropriate to give one more opportunity to the complainant to prosecute his complaint, subject to payment of costs of Rs.3000/- (Rupees Three Thousand only). Out of the said amount Rs.1000/- shall be paid to the accused and the remaining amount of Rs.2,000/- shall be deposited with the District Legal Services Authority, Shivamoga within a period of two weeks from today. A copy of the receipt shall be produced before the trial Court on the next date of hearing. 9. The appellant is directed to appear before the trial Court on 27.03.2020 and thereafter, shall appear as directed by the trial Court. With the above observations, the following ORDER Appeal is allowed. Impugned Order dated 07.10.2017 passed in C.C.No.439/2016 on the file of JMFC (III Court), Shimoga is hereby set aside. The complaint shall be restored to file and the learned Magistrate is directed to proceeded further in accordance with law.