S Gopal Shettigar vs Suhad Banu

Rajesh Rai K, J

Though this appeal is listed for Admission, since the short question involved in the appeal, the same is taken up for final disposal with the consent of learned counsel for the appellant.

The appellant/complainant has assailed the judgment passed in C.C.No.2563/2019 dated 25.11.2023 by the Prl. Civil Judge and JMFC, Udupi (hereinafter referred to as 'Trial Court') whereby the learned Trial Judge dismissed the complaint filed by the complainant/appellant under Section 200 of Cr.P.C for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short 'N.I. Act) for non prosecution.

The abridged facts of the case are that, the complainant/appellant filed a private complaint under Section 200 of Cr.P.C for the offence punishable under Section 138 of the N.I. Act against the accused alleging that the accused had borrowed a hand loan of Rs.1,00,000/- in the year 2017 and thereafter, he failed to repay the said amount and finally, he issued a cheque bearing No.540796 dated 07.01.2019 drawn on Karnataka Bank Ltd., Kannarpady-Kadekar Branch for Rs.1,24,000/- i.e., including the interest for the principal amount. The complainant presented the said cheque for encashment through his banker, but the same was returned with an endorsement dated 19.01.2019 as “Payment Stopped by Drawee". The said aspect was brought to the knowledge of the accused by issuing a legal notice dated 07.02.2019. The said notice was served to the accused, he replied to the said notice; however, he failed to repay the loan amount. As such, the complainant filed a private complaint under Section 200 of Cr.P.C. for the offence punishable under Section 138 of N.I. Act before the Trial Court.

The accused voluntarily appeared before the Court through his counsel and filed an application under Section 205 of Cr.P.C. Later, the accused failed to appear before the Court. Hence, Non-Bailable Warrant issued against the accused. However, the learned counsel for the complainant failed to pay the process fee along with the requisites for re-issuance of the Non-Bailable Warrant. Hence, the learned Magistrate has dismissed the complaint on 25.11.2023. Against the said order, the complainant has preferred this appeal.

Heard the learned counsel for the appellant.

It is contended by the learned counsel for the appellant that, due to the death of counsel for the complainant appearing before the Trial Court, there was no representation before the Court and the process has not been paid for re-issuance of Non-Bailable Warrant. The said aspect of the matter was not within the knowledge of the complainant. After dismissal of the case, he came to know about the death of his counsel and later, he filed this appeal. Hence, he submits that the reason for not taking steps before the Trial Court is neither intentional nor deliberate but only bonafide one.

I have carefully perused the proceedings/order sheet in C.C.No.2563/2019. On perusal, the same depicts, the case has been initially filed before the III Addl. Civil Judge and JMFC, Udupi and later it was transferred to IV Addl. Civil Judge and JMFC, Udupi and subsequently to Prl. Civil Judge and JMFC, Udupi. In the interregnum, there was SOP guidelines issued restricting the movements of the public due to COVID-19 pandemic. Additionally it is submitted that, the counsel on record was expired; as such there was no representation before the Trial Court. Considering the said aspect, I am of the view that, one more opportunity may be extended to the complainant to pursue his case before the Trial Court. Accordingly, I proceed to pass the following:

ORDER

i. The Criminal Appeal No.1191/2024 is allowed.

ii. The order dated 25.11.2023 passed by the Trial Court in C.C.No.2563/2019 is set-aside and the same is restored to its original file for reconsideration at the hands of Trial Court in accordance with law.

iii. The complainant shall appear before the Trial Court on 22.09.2025 without expecting any further notice from the Trial Court.

iv. It is made clear that the complainant shall take necessary steps on the said day without seeking any further time. If the complainant fails to take steps, the learned Trial Judge is at liberty to dismiss the complaint.

v. Since the transaction is of the year 2017, the Trial Court is directed to dispose off the case as early as possible and in accordance with the Karnataka (Case Flow management in Subordinate Courts) Rules, 2005.

The Registry is directed to return the records to the concerned Court forthwith along with the certified copy of this judgment.