2021 (7) TMI 431 - HC - Indian Laws

Dishonor of Cheque - complainant could not be present before the trial Court - guilty for the charges leveled against or not - HELD THAT - It is seen in the order sheet of the trial Court that even the matter was referred to the mediation to explore the possibility of settlement. However, subsequently when it is posted for cross-examination of the complainant, the accused has cross-examined the complainant fully. His statement under Section 313 of Cr.P.C. was also recorded and the matter was posted for defence evidence. At this stage, the accused remained absent and even the NBW issued repeatedly could not be executed. Notices to sureties were also issued by the trial Court. However, on 03.02.2020 the trial Court proceeded to dismiss the case for default i.e., for non-prosecution. The trial Court noticed that for several dates there was no representation on behalf of the complainant and there is no reason to adjourn the matter. The complainant could not be present before the trial Court. Absence of the complainant is not intentional or deliberate. Hence, the appeal may be allowed in the interest of justice - the impugned order dismissing the case for default could be set aside subject to terms - criminal appeal allowed.

Summary

Issues:
1. Dismissal of the complaint for default by the Trial Court.

Analysis:
The appellant filed a private complaint against the respondent for an offence under Section 138 of the Negotiable Instruments Act. The trial Court took cognizance of the offence and registered the case. The respondent appeared before the Court, pleaded not guilty, and even participated in mediation. However, the respondent later absconded, leading to the dismissal of the case for non-prosecution. The appellant argued that the absence was due to the illness and subsequent death of their counsel, not intentional. The Court acknowledged the appellant's diligence and willingness to cooperate, leading to the decision to set aside the dismissal order.

The Court noted that the complainant diligently pursued the case, and the absence before the trial Court was due to unavoidable circumstances. The Court found merit in the appellant's argument that failure to set aside the dismissal order would deprive the complainant of their rights. Therefore, the Court decided to set aside the dismissal order and restore the case, subject to a fine to be deposited by the complainant within a specified time frame. The Court emphasized the need for the complainant to actively prosecute the case upon restoration.

In conclusion, the High Court of Karnataka allowed the Criminal Appeal, setting aside the impugned order of dismissal for non-prosecution by the Trial Court. The case was restored on its file, subject to a fine to be paid by the complainant. The Court highlighted the importance of diligent prosecution by the complainant upon restoration of the case to ensure the effective pursuit of justice.