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2022 DIGILAW 1521 (KAR)

Ravikumar v. Shivappa

2022-11-30

G BASAVARAJA

body2022
JUDGMENT 1. Feeling aggrieved and dissatisfied by the order passed by the II JMFC, Hubballi dated 09.08.2016 in which the Trial Court has dismissed the complaint for non-prosecution, the complainant/appellant has preferred this appeal. 2. The parties are referred to as per their ranking before the Trial Court. 3. Heard Sri. Shivasai M.Patil, learned counsel for the appellant and Sri. Ramesh B.Chigari, learned counsel for the respondent. 4. The brief facts of the case is that the complainant had filed a complaint under Section 200 of the Code of Criminal Procedure, 1973 (for short, the 'Cr.P.C.') against the accused for the commission of offence punishable under Sections 138, 141 and 142 of Negotiable Instruments Act, 1881 (for short, the 'N.I. Act'). 5. The Trial Court has taken cognizance against the accused for the offence punishable under Sections 138, 141 and 142 of N.I. Act. In pursuance of the summons, accused/respondent appeared before the Trial Court. The substance of plea was recorded under Section 251 of Cr.P.C., having understood the same accused has pleaded not guilty and claimed to be tried. 6. To prove the case of the complainant, complainant has examined as PW.1, six documents got marked as Exs.P.1 to 6. On closure of the case of the complainant side evidence, statement under Section 313 of Cr.P.C., was recorded as to the incriminating the circumstances appeared against the accused. The accused has totally denied the evidence of complaint but he has not chosen any defense evidence on his behalf and then the case was posted for arguments. 7. When the case was posted for arguments and on 01.08.2015 accused has filed an application under Section 311 of Cr.P.C., to recall PW.1 for further cross-examination, same was allowed by the Trial Court on payment of cost of Rs.500/-. On 14.08.2015 the complainant was present and accused was also present and thereafter, the case was being adjourned from time to time and on 09.08.2016, the Trial Court has dismissed the case for non-prosecution. Being aggrieved by this impugned order, the complainant has preferred this appeal. 8. Sri. Shivasai M.Patil, learned counsel for the appellant has submitted his arguments that the impugned order passed by the Trial Court is illegal and contrary to law and evidence on record. Being aggrieved by this impugned order, the complainant has preferred this appeal. 8. Sri. Shivasai M.Patil, learned counsel for the appellant has submitted his arguments that the impugned order passed by the Trial Court is illegal and contrary to law and evidence on record. The complainant was not keeping good health on that day as he was suffering from chronic illness and he was under rest as advised by the doctor. The Trial Court without seeing the records and materials available in the case paper, has dismissed the case. On these grounds, sought for allowing this appeal. 9. As against this, Sri. Ramesh B.Chigari, learned counsel for the respondent has submitted his arguments that the impugned order passed by the Trial Court is in accordance with law. Hence, there are no grounds to interfere in this case by this Court. With this, he seeks to dismiss the appeal. 10. Having regard to the facts and circumstances of the case, the following points arise for consideration: Point No.1:- Whether the impugned order passed by the Trial Court dated 09.08.2016 is in accordance with law? Point No.2:- What order? 11. I have carefully gone through the materials placed before this Court. 12. The Trial Court has registered the case in C.C.No.863/2013 against the accused for the commission of offences punishable under Sections 138, 141 and 142 of N.I. Act. When plea was recorded, accused pleaded not guilty and claimed to be tried. To prove the case of the prosecution, the complainant-Ravikumar S/o. Krishnaji Kulkarni was examined as PW.1 on 19.06.2014. The accused has also cross-examined on 08.12.2014 and six documents got marked as Exs.P.1 to 6. The Trial Court has recorded the statement under Section 313 of Cr.P.C., on 07.01.2015, then the case was posted for defense evidence on 21.01.2015 and then posted for 11.02.2015. On 11.02.2015, it is submitted that there is no defense evidence, hence, the case was posted for arguments on 25.02.2015 and till 27.07.2015, the case was being adjourned from time to time for arguments. Finally the case was posted for arguments on 01.08.2015, on that day the accused has filed an application under Section 311 of Cr.P.C., same was allowed with cost of Rs.500/-, PW.1 was recalled for further cross-examination and case was called on 14.08.2015. Finally the case was posted for arguments on 01.08.2015, on that day the accused has filed an application under Section 311 of Cr.P.C., same was allowed with cost of Rs.500/-, PW.1 was recalled for further cross-examination and case was called on 14.08.2015. On 14.08.2015 both the complainant and the accused were present, the case was posted for cross-examination of PW.1 on 28.08.2015, on 28.08.2015 the complainant was absent, the accused was present and the case was posted for cross-examination of PW.1 on 26.09.2015, again on 26.09.2015 the complainant was absent, the accused was present and the case was posted for cross-examination of PW.1 on 04.11.2015, on 04.11.2016 the complainant was absent and the accused was present, finally the case was posted for further cross-examination of PW.1 on 24.11.2015, on 24.11.2015 both the parties were absent, hence, NBW was issued against the accused and posted the matter on 23.02.2016. On 23.02.2016 both the parties were present and an application was filed by the accused under Section 70(2) of the Cr.P.C., same was allowed with payment of penalty of Rs.100/-. After receipt of penalty amount, the case was posted on 02.05.2016. On 02.05.2016, again the complainant was absent and the accused was present, hence the case was posted for cross-examination of PW.1 on 16.05.2016, on 16.05.2016 complainant was absent and the accused was present, again the case was posted for cross-examination of PW.1 on 04.06.2016, on 04.06.2016 complainant was absent and the accused was present and the case was posted for cross-examination of PW.1 on 18.06.2016, on 18.06.2016 the complainant was absent, the accused was present and again the case was posted for further cross-examination of PW.1 on 09.08.2016. Finally on 09.08.2016, the Trial Court has passed the following order: 'Case called at 11-00 a.m. Complainant absent. Advocate for complainant absent. Accused and counsel for the accused present. Again case called at 5.30 p.m. Complainant absent. Advocate for complainant absent. No representation. Perused, the order sheet. Since long time complainant remained absent. Hence, the complaint is dismissed for non-prosecution.' 13. A perusal of the impugned order, it is crystal clear that the Trial Court has not perused properly the previous order sheet and also the evidence recorded by the Trial Court and statement under Section 313 of the Cr.P.C. The Trial Court has not passed any order as to the evidence recorded by it. A perusal of the impugned order, it is crystal clear that the Trial Court has not perused properly the previous order sheet and also the evidence recorded by the Trial Court and statement under Section 313 of the Cr.P.C. The Trial Court has not passed any order as to the evidence recorded by it. The Trial Court has not discarded the evidence of PW.1. However, the Trial Court has dismissed the complaint which is not sustainable under law. There is no justification in passing the impugned order. In the interest of justice, one more opportunity is to be given to the complainant to prosecute the case. Hence, I answer: Point No.1:- In affirmative. Point No.2:- For the aforesaid reasons and discussions, I proceed to pass the following: ORDER i. The appeal filed under Section 378(4) of the Cr.P.c., is allowed. ii. The impugned order passed by the II JMFC, Hubballi dated 09.08.2016 is set aside. iii. The complaint is restored and the case is remitted to the Trial Court for disposal of the case in accordance with law by giving an opportunity to the complainant and the accused. iv. Both the parties are directed to appear before the Trial Court on 15.12.2022 without seeking any notice from the Trial Court. v. As the matter is of the year 2013, the Trial Court is directed to dispose of the case as early as possible. vi. Both the parties shall co-operate to dispose of the matter at the earliest point of time without seeking any unnecessary adjournments. vii. Transmit the Trial Court Records along with a copy of this judgment to the Trial Court.