- 1 - NC: 2025:KHC:206 CRL.A No. 1397 of 2017 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7TH DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR CRIMINAL APPEAL No. 1397 OF 2017 BETWEEN: SRI S A MANJUNATH S/O ANNAPPA GANIGA R/AT # 38, 7TH CROSS 7TH MAIN ROAD LAKSHMINARAYANA PURAM BANGALORE - 560 021. …APPELLANT (BY SRI S JAGAN BABU, ADVOCATE) AND: SRI B SHANKAR S/O A BALAYYA ACHARI AGED ABOUT 52 YEARS R/AT, # P-14, 2ND FLOOR 4TH CROSS, NAGAPPA BLOCK NEAR ANGALA PARAMESHWARI TEMPLE, BANGALORE-560 021. …RESPONDENT (BY SRI GIRISH KUMAR S, ADVOCATE - ABSENT) THIS CRL.A. IS FILED U/S.378(4) Cr.P.C PRAYING TO SET ASIDE THE ORDER OF DISMISSAL FOR NON- PROSECUTION DATED 06.01.2017 PASSED BY XXI ADDITIONAL CHIEF METROPOLITAN MASGISTRATE, BANGALORE IN C.C.No.17714/2016 ARISING OUT OF PCR.No.7447/2016 AND RESTORE THE SAID FILE IN ITS ORIGINAL NUMBER TO PROCEED THE ABOVE SAID CASE IN ACCORDANCE WITH LAW. Digitally signed by HEMAVATHY GANGABYRAPPA Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:206 CRL.A No. 1397 of 2017 THIS APPEAL COMING ON FOR ADMISSION THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR ORAL JUDGMENT This appeal is filed under Section 378 (4) of Cr.P.C praying to set aside the order of dismissal of complaint for non prosecution dated 06.01.2017 passed by the XXI Additional Chief Metropolitan Magistrate, Bengaluru in C.C. No.17714/2016 and restore the file in its original number. 2. Heard learned counsel for the appellant. 3. Learned counsel for the respondent is not present. 4. The appellant –complainant has initiated proceedings against the respondent –accused for the offence punishable under Section 138 of Negotiable Instruments Act, 1881 (hereinafter referred to as “N.I. Act’ for brevity) and case came to be registered - 3 - NC: 2025:KHC:206 CRL.A No. 1397 of 2017 against the respondent –accused in C.C. No.17714/2016 and it was pending on the file of the XXI Additional Chief Metropolitan Magistrate, Bengaluru. The respondent –accused appeared in the said criminal case and plea came to be recorded on 22.11.2016. Thereafter, the matter was adjourned for recording of evidence of the complainant to 03.12.2016. The complaint came to be dismissed recording absence of the appellant –complainant on 06.01.2017. The said order of dismissal of the complaint for non prosecution dated 06.01.2017 has been challenged in this appeal. 5. Learned counsel for the appellant would contend that on 27.12.2016 when the matter was fixed for recording evidence of complainant, the complainant and his counsel were present in the Court to proceed with the matter and on that day the case came to be adjourned as the Presiding Officer was on - 4 - NC: 2025:KHC:206 CRL.A No. 1397 of 2017 leave. He further submits that counsel for the complainant has taken a wrong date and therefore, the complainant could not be present on the adjourned date i.e. 06.01.2017. On the said date the complaint came to be dismissed for non prosecution. He further submits that absent of the complainant on 06.01.2017 is for bonafide reason. With this, he prays to allow the appeal and restore the case. 6. Having heard learned counsel for the appellant, the Court has perused the materials placed on record. 7. The plea has been recorded on 22.11.2016 and case came to be adjourned for recording of evidence of complainant to 03.12.2016. On that day, the complainant was absent and case came to be adjourned to 14.12.2016. On 14.12.2016, the accused was absent and complainant was also absent and case came to be adjourned by imposing cost of - 5 - NC: 2025:KHC:206 CRL.A No. 1397 of 2017 Rs.200/- to 27.12.2016. On 27.12.2016, the Presiding Officer was on leave and the case came to be adjourned to 06.01.2017. On 06.01.2017, the complainant was absent and noting the same, the Court dismissed the complaint for non prosecution. 8. The reason put forth by the complainant is that he has taken a wrong date as 16.01.2017 instead of 06.01.2017 therefore, he could not be present before the Court to lead evidence on 06.01.2017. The appellant –complainant has put forth sufficient reason for his absence on 06.01.2017. 9. Considering the said aspect, the impugned order dated 06.01.2017 dismissing the complaint for non prosecution requires to be set aside and the case requires to be restored. 10. In the result, the following ORDER i) The appeal is allowed. - 6 - NC: 2025:KHC:206 CRL.A No. 1397 of 2017 ii) The impugned order dated 06.01.2017 passed in C.C. No.17714/2016 by the XXI Additional Chief Metropolitan Magistrate, Bengaluru is set aside. The Criminal Case No.17714/2016 is ordered to be restored to file. Sd/- (SHIVASHANKAR AMARANNAVAR) JUDGE DSP List No.: 1 Sl No.: 15