- 1 - HC-KAR NC: 2025:KHC:43151 CRL.A No. 583 of 2020 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF OCTOBER, 2025 BEFORE THE HON'BLE MR. JUSTICE G BASAVARAJA CRIMINAL APPEAL NO. 583 OF 2020 (A) BETWEEN: SRI DINAKAR ULLAL, S/O LATE U CHANDAPPA, AGED ABOUT 63 YEARS, RESIDING AT PERMANNUR VILLAGE, MANGALURU, D K DISTRICT, PIN - 575 012. …APPELLANT (BY SMT. POOJA PARVATHI .U, ADVOCATE FOR SRI. RAVISHANKAR SHASTRY G., ADVOCATE) AND: MOHAMMAD AYUB, S/O DR M B MOHAMMAD, MAJOR, GATE HOUSE, ANSARI ROAD, BUNDER, MANGALURU, D K DISTRICT, PIN-575 001. …RESPONDENT (V/O DTD:29.10.2025 NOTICE TO RESPONDENT IS DISPENSED WITH) THIS CRL.A. IS FILED U/S.378(4) CR.P.C PRAYING TO SET ASIDE THE ORDER OF ACQUITTAL DATED 01.10.2018 PASSED BY THE III ADDTIONAL CIVIL JUDGE AND JMFC MANGALURU IN C.C.NO.451/2009-ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE P/U/S 138 OF NI ACT THIS APPEAL, COMING ON FOR ORDERS THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: Digitally signed by LAKSHMINARAYAN N Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:43151 CRL.A No. 583 of 2020 CORAM: HON'BLE MR. JUSTICE G BASAVARAJA ORAL JUDGMENT 1. I have heard the arguments of learned counsel for the appellant. The appellant-Complainant has preferred this appeal against the impugned order passed by the Trial Court dated 01.10.2018 as the Trial Court has dismissed the complaint for default. 2. The order sheet reveals that the appellant has filed complaint under Section 138 of NI Act. Case was registered in PCR.No.108/2001. After taking cognizance, case was registered in CC.No.451/2009. On 01.10.2018, the Trial Court has passed the following order: "Complainant prays time. On perusal of order sheet, it reveals that already sufficient opportunities have been granted to complainant to take steps against accused. But complainant failed to take steps. This depicts that complainant is not having any interest in prosecuting the case. Hence, complaint is dismissed for default." - 3 - HC-KAR NC: 2025:KHC:43151 CRL.A No. 583 of 2020 3. Learned counsel for the appellant would submit that the dismissal order is opposed to law and facts. The learned Magistrate ought to have secured the presence of the respondent by issuing and getting executed the NBW when summons was served on the accused on 08.01.2002. No fault could have been attributed to the appellant for taking steps for executing NBW against the respondent. On several occasions, appellant had taken steps for executing the NBW. But the respondent has avoided the NBW. On all these grounds, he sought for allowing this appeal. 4. I have examined the materials placed before this Court. 5. On perusal of the order sheet, it is clear that on 08.01.2002, summons was duly served to the accused. The accused appeared through his counsel and filed application under Section 205 of Cr.P.C. Same was allowed. Thereafter, accused remained absent and NBW - 4 - HC-KAR NC: 2025:KHC:43151 CRL.A No. 583 of 2020 was issued to the accused from time-to-time from 16.02.2002 till dismissal of this case for default. 6. On perusal of the order sheet, it is clear that many a times the appellant/complainant has paid the PF. When the NBW was issued to the accused, it is the duty of the Court to see whether the NBW was executed or not. But the order sheet does not indicate whether the NBW is returned unexecuted or not. Without following due procedure, the Trial Court has mechanically dismissed the case for default which is not sustainable under law. Hence, I proceed to pass the following: O R D E R (i) The appeal is allowed; (ii) The order dated 01.10.2018 in C.C.No.451/2009 passed by the III Additional Civil Judge and JMFC, Mangaluru, is set aside; (iii) C.C.No.451/2009 shall be restored to file; - 5 - HC-KAR NC: 2025:KHC:43151 CRL.A No. 583 of 2020 (iv) The complainant is directed to appear before the Trial Court on 01.12.2025 without seeking any further notice from the Trial Court; (v) The complainant/appellant is directed to take necessary steps to secure the accused. Thereafter, the Trial Court shall proceed with the case, in accordance with law; (vi) Registry is directed to send a copy of this order to the Trial Court for taking necessary action. SD/- (G BASAVARAJA) JUDGE DHA List No.: 1 Sl No.: 8