- 1 - NC: 2025:KHC:6908 CRL.A No. 2072 of 2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR CRIMINAL APPEAL NO. 2072 OF 2024 BETWEEN: SRI. N.S. SHANTHA KUMAR S/O SHANKARA SHETTY, AGED ABOUT 53 YEARS, R/AT NITTURU VILLAGE SALAGAME HOBLI, HASSAN TALUK, HASSAN - 573 219. …APPELLANT (BY SRI. NAWAZ BASHA QUADRI SYED, ADVOCATE SRI. SUPRITH K.H, ADVOCATE) AND: SRI. SATHISHA S/O SRI. RANGAIAH, AGED ABOUT 53 YEARS, R/AT KANATURU VILLAGE, PALYA HOBLI, ALURU TALUK, HASSAN - 573213. (RESPONDENT IS SERVED AND UNREPRESENTED) …RESPONDENT THIS CRL.A IS FILED U/S 378(4) OF CR.P.C. PRAYING TO SET ASIDE THE IMPUGNED ORDER PASSED IN CC.NO.3950/2016 DTD 30.09.2024 ON THE FILE LEARNED 5TH ACJ AND JMFC, HASSAN. Digitally signed by HEMAVATHY GANGABYRAPPA Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:6908 CRL.A No. 2072 of 2024 THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR ORAL JUDGMENT 1. This appeal is filed by the appellant – complainant praying to set-aside the impugned order dated 30.09.2024 passed in C.C.No.3950/2016 by the V Additional Civil Judge and J.M.F.C, Hassan, whereunder, the complaint has been dismissed for default. 2. Heard learned counsel for the appellant – complainant. Inspite of service of notice, the respondent – accused has remained absent and unrepresented. 3. The appellant – complainant initiated the proceedings against the respondent - accused for the offence under Section 138 of the Negotiable Instruments Act, 1881 (for short hereinafter referred to as “N.I.Act”) and it was pending in C.C.No.3950/2016, on the file of the V Additional Civil Judge and J.M.F.C, Hassan. In the said criminal case, inspite of service of summons the - 3 - NC: 2025:KHC:6908 CRL.A No. 2072 of 2024 respondent - accused did not appear and the Trial Court had issued the Non Bailable Warrant against him. The appellant - complainant had paid the process fee for issue of the Non Bailable Warrant from time to time. The police did not execute the Non Bailable Warrant issued against the respondent - accused. The case was listed on 30.09.2024 for return of the Non Bailable Warrant. On that day, noting the absence of the appellant - complainant and also noting that he did not assist the police for execution of the Non Bailable Warrant issued against the respondent – accused, the Trial Court has dismissed the complaint for default. The said order has been challenged by the appellant - complainant in this appeal. 4. Learned counsel for the appellant – complainant would contend that the appellant - complainant had paid the process fee and it is the duty of the police to execute the Non Bailable Warrant issued against the respondent – accused. He further submits that there is no role of the - 4 - NC: 2025:KHC:6908 CRL.A No. 2072 of 2024 appellant - complainant in execution of the Non Bailable Warrant issued against the respondent - accused. The complaint came to be dismissed on 30.09.2024 on the date on which, the Non Bailable Warrant issued against the respondent - accused had been returned unexecuted. On that day, the appellant - complainant had remained absent and his counsel also remained absent, noting the same, the complaint was dismissed for default. He further submits that the Trial Court ought to have given the opportunity to the appellant - complainant to take further steps against the respondent - accused and erred in dismissing the complaint on the very same day when the Non Bailable Warrant was returned unexecuted. With this, he prayed for allowing the appeal and restoring the said criminal case. 5. Having heard the learned counsel, the Court has perused the impugned order and the other materials placed on record. - 5 - NC: 2025:KHC:6908 CRL.A No. 2072 of 2024 6. The summons issued to the respondent - accused had been served and inspite of that, he had remained absent and therefore, the Non Bailable Warrant had been issued against the respondent - accused. The complainant had paid the process fee from time to time for issuance of the Non Bailable Warrant against the respondent - accused. On 22.07.2024, the appellant - complainant had furnished the process fee and the Court had ordered for re-issuance of the Non Bailable Warrant against the respondent - accused with the assistance of the appellant - complainant through Extension Police Station, Hassan. As the appellant - complainant had not assisted the police in execution of the Non Bailable Warrant, the complaint came to be dismissed for default on 30.09.2024. The Non Bailable Warrant issued against the respondent - accused has to be executed by the police. There is no role of the appellant - complainant in execution of the Non Bailable Warrant issued against the respondent - accused. The appellant - complainant had furnished the process fee for issuance of the Non Bailable Warrant. It is the police who - 6 - NC: 2025:KHC:6908 CRL.A No. 2072 of 2024 have failed in executing the Non Bailable Warrant issued against the respondent - accused. The appellant - complainant cannot be blamed for non execution of the Non Bailable Warrant by the police. On receipt of the report of non execution of the Non Bailable Warrant issued against the respondent - accused, the learned Magistrate ought to have given an opportunity by adjourning the matter. But on the same day, the learned Magistrate has dismissed the complaint for default. Therefore, the Trial Court has erred in dismissing the complaint by the impugned order. Therefore, the impugned order requires to be set-aside and the criminal case requires to be restored. In the result, the following; ORDER The appeal is allowed. The impugned order dated 30.09.2024 passed in C.C.No.3950/2016 by the V Additional Civil Judge and J.M.F.C, Hassan is set-aside. C.C.No.3950/2016 is ordered to be restored. The appellant - complainant is directed to appear before the - 7 - NC: 2025:KHC:6908 CRL.A No. 2072 of 2024 Trial Court on 19.03.2025 without awaiting any Court notice. Registry is directed to send a copy of this order to the Trial Court forthwith along with the Trial Court records, if received. Sd/- (SHIVASHANKAR AMARANNAVAR) JUDGE GH List No.: 1 Sl No.: 33