- 1 - HC-KAR NC: 2025:KHC-D:9955 CRL.A No. 100120 of 2025 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 6TH DAY OF AUGUST, 2025 BEFORE THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY CRIMINAL APPEAL NO. 100120 OF 2025 (A) BETWEEN: SRI. SIDDHESHWAR S/O. MALHARI KADAM AGE. 37 YEARS, OCC. SEPOY-ARMY, R/O. NO.4768/A, LAXMI NAGAR, MACHCHE, BELAGAVI, TQ. AND DIST. BELAGAVI, PIN-590 014, NOW AT GATE NO.1, ARMY SADILAPUR TRANSIT CAMP, MAIN ROAD, GOPINATH BORDOLOI NAGAR, JALUKBARI, GUWAHATI, ASSAM-781 014. … APPELLANT (BY SRI. S.B. PATIL, ADVOCATE) AND: SRI. RAJU S/O. BAPU GUNDAPIKAR, AGE. 53 YEARS, OCC. AGRICULTURE, R/O. RUMEWADI VILLAGE, TAL. KHANAPUR, DIST. BELAGAVI, PIN-591 120. … RESPONDENT (BY SRI. SANJAY S. KATAGERI, ADVOCATE) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378 (4) OF THE CODE OF CRIMINAL PROCEDURE R/W SECTION 419 (4) OF THE BHARATIYA NAGARIKA SURAKSHA SANHITA, 2023 PRAYING TO CALL FOR RECORDS AND SET ASIDE THE ORDER DATED 09.12.2024 PASSED BY THE J.M.F.C.-V, BELAGAVI IN C.C. NO.1179/2022 THEREBY DISMISSING THE C.C. FOR NON-PROSECUTION AND ACQUITTING THE ACCUSED/RESPONDENT FOR OFFENCE PUNISHABLE UNDER SECTION 138 OF NI ACT BY ALLOWING THE PRESENT APPEAL AND RESTORE C.C. NO.1179/2022 TO ORIGINAL FILE, IN THE INTEREST OF JUSTICE AND EQUITY. THIS APPEAL, COMING ON FOR ADMISSION THIS DAY, JUDGMENT IS DELIVERED THEREIN AS UNDER: RAKESH S HARIHAR Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC-D:9955 CRL.A No. 100120 of 2025 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY) 1. Appellant/complainant is before this Court challenging the order dated 09.12.2024 passed by the Court of JMFC-V, Belagavi in C.C.No.1179 of 2022, wherein the respondent/accused has been acquitted and the complaint has been dismissed for non-prosecution. 2. Heard learned counsel for the parties. 3. Appellant had initiated proceedings against the respondent for offence punishable under Section 138 of the Negotiable Instruments Act before the Court of JMFC- V, Belagavi and after taking cognizance of the alleged offence, the accused was being tried before the trial Court in C.C.No.1179 of 2022. It appears that the appellant had examined himself as PW1 and since he was not cross- examined, the matter was posted for the purpose of defence evidence. At that stage, application was filed on behalf of respondent to recall PW1 for the purpose of his cross-examination. The said application was allowed. - 3 - HC-KAR NC: 2025:KHC-D:9955 CRL.A No. 100120 of 2025 However, PW1 had not kept him present before the trial Court on the dates of hearing and it is under these circumstances the order impugned was passed. 4. Learned counsel for the appellant has submitted that the appellant is serving as a Soldier in Indian Army and it is under these circumstances he could not appear before the trial Court for the purpose of his cross- examination. He submits that he was earlier prosecuting the complaint diligently and it was only after PW1 was recalled, he had not appeared before the trial Court. I find some force in the contentions raised on behalf of the appellant. If an opportunity of prosecuting the complaint on merits is not given to the appellant, he will be put to hardship and his case is likely to be prejudiced. Under the circumstances, I am of the opinion that the order impugned passed by the trial Court, dismissing the complaint for non-prosecution and thereby acquitting the respondent needs to be set aside. Accordingly, the following: - 4 - HC-KAR NC: 2025:KHC-D:9955 CRL.A No. 100120 of 2025 ORDER i. Criminal Appeal is allowed. ii. The order dated 09.12.2024 passed by the Court of JMFC-V, Belagavi in C.C.No.1179 of 2022 dismissing the complaint for non- prosecution and thereby acquitting the accused is set aside and the complaint is restored to file. iii. The trial Court is directed to proceed further, in accordance with law. iv. The parties or their representatives are directed to appear before the trial Court on 01.09.2025. Sd/- (S.VISHWAJITH SHETTY) JUDGE KGK CT:BCK LIST NO.: 1 SL NO.: 72