- 1 - HC-KAR NC: 2025:KHC-D:9469 CRL.A No. 100101 of 2025 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 31ST DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY CRIMINAL APPEAL NO. 100101 OF 2025 (A) BETWEEN: SHRI. MUTTURAJ S/O GURUPADAPPA RAVALOJI, AGE: 52 YEARS, OCC: BUSINESS, R/O: KADAPATTI, JAMKHANDI-587 119, TQ: JAMKHANDI, DIST: BAGALKOTE. … APPELLANT (BY SRI. PRUTHVI K.S., ADVOCATE) AND: SHRI SHANKAR S/O ISHWARAPPA PATTAR, AGE: 58 YEARS, OCC: TEACHER, R/O: SHRI VINAYAK VANIJYA VIDYALAYA COMPUTER CENTER, NEAR SANADI CLINIC, JAMKHANDI-587 301, TQ: JAMKHANDI, DIST: BAGALKOTE. … RESPONDENT (BY SRI. PRASHANT S. KADADEVAR, ADVOCATE) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4) OF CR.P.C. (419(4) OF BNSS), PRAYING TO SET ASIDE THE ORDER OF ACQUITTAL DATED 19.11.2024 FOR THE OFFENCE PUNISHABLE UNDER SECTION 138 OF N.I. ACT IN CC NO.257/2023 PENDING ON THE FILE OF THE COURT OF SENIOR CIVIL JUDGE AND JMFC, MUDHOL AND RE-STORE THE PROCEEDINGS IN C.C. NO.257/2023 TO ITS ORIGINAL FILE, IN THE INTEREST OF JUSTICE AND EQUITY. THIS APPEAL, COMING ON FOR FURTHER ORDERS THIS DAY, JUDGMENT IS DELIVERED THEREIN AS UNDER: Digitally signed by RAKESH S HARIHAR Location: HIGH COURT OF KARNATAKA DHARWAD BENCH Date: 2025.08.04 15:17:20 +0530 - 2 - HC-KAR NC: 2025:KHC-D:9469 CRL.A No. 100101 of 2025 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY) 1. This appeal is filed under Section 378(4) read with Section 419(4) of the BNSS, 2023 by the complainant assailing the order dated 19.11.2024, passed by the Prl. Senior Civil Judge and JMFC, Mudhol in C.C. No.257/2023 dismissing the complaint of the appellant for non-prosecution. 2. Heard the learned counsel appearing for the parties. 3. The appellant herein had filed a private complaint in PCR No.225/2023 before the jurisdictional Court against the respondent for the offence punishable under Section 138 of N.I. Act. After taking cognizance of the alleged offence, the case before the trial Court was numbered in C.C. No.257/2023 and in the said proceedings, the complainant had examined himself as PW1. On the ground that the complainant (PW1) had not tendered himself for cross-examination, the complaint was dismissed - 3 - HC-KAR NC: 2025:KHC-D:9469 CRL.A No. 100101 of 2025 for non-prosecution on 19.11.2024. It is under these circumstances, the complainant is before this Court in this appeal. 4. Learned counsel for the appellant having reiterated the grounds urged in the appeal memorandum submitted that the due to certain health conditions of the appellant, he could not appear before the trial Court for the purpose of his cross-examination. He submits that the appellant has produced certain medical records before the Court, which would prima facie go to show that he had certain health conditions. He submits that if an opportunity is not granted to the appellant, he will be put to untold hardship. 5. Per contra, learned counsel for the respondent has opposed the prayer made in the appeal memorandum and submits that the in spite of the appellant being granted sufficient opportunity, he did appear before the trial Court and tender himself for cross-examination and therefore, the - 4 - HC-KAR NC: 2025:KHC-D:9469 CRL.A No. 100101 of 2025 trial Court was justified in dismissing the complaint for non- prosecution. Accordingly, he prays for dismissal the appeal. 6. The appellant who was examined before the trial Court as PW1 had not appeared before the trial Court for a period of nearly five months on the dates of hearing and it is under these circumstances, the trial Court has dismissed the complaint for non-prosecution. Learned counsel for the appellant has produced certain medical documents of the appellant in support of his contention that the appellant had certain medical conditions and therefore he was not in a position to appear before the trial Court on the dates of hearing for the purpose of his cross-examination. The appellant has offered a satisfactory explanation for his non- appearance before the trial Court for the purpose of his cross-examination. The appellant is the complainant before the trial Court and if an opportunity to prosecute his case on merits is not given, it will cause serious hardship to him and on the other hand no hardship or prejudice would be caused to the other side. - 5 - HC-KAR NC: 2025:KHC-D:9469 CRL.A No. 100101 of 2025 7. Under the circumstances, I am of the opinion that the prayer made by the appellant in the present appeal needs to be granted subject to imposing appropriate cost. Accordingly, the following: ORDER (i) The criminal appeal is allowed. (ii) The order dated 19.11.2024 passed by the Prl. Senior Civil Judge and JMFC, Mudhol in C.C. No.257/2023 dismissing the complaint for non-prosecution is set aside subject to payment of cost of Rs.2,000/- payable to the respondent before the trial Court. The complaint is restored to file and the trial Court is directed to proceed with the case in accordance with law. Sd/- (S.VISHWAJITH SHETTY) JUDGE VNP / CT:BCK LIST NO.: 1 SL NO.: 38