- 1 - NC: 2025:KHC-K:1455 CRL.P No. 200026 of 2025 IN THE HIGH COURT OF KARNATAKA, KALABURAGI BENCH DATED THIS THE 21ST DAY OF MARCH, 2025 BEFORE THE HON'BLE MR. JUSTICE S RACHAIAH CRIMINAL PETITION NO.200026 OF 2025 (482(Cr.PC)/528(BNSS)) BETWEEN: PRAKASH S/O HARICHANDRA CHAVAN, AGE:37 YEARS, OCC: BUSINESS, R/O. AT POST AINAPUR L.T, NEAR SINDAGI ROAD, VIJAYAPURA-586104. …PETITIONER (BY SRI BAPUGOUDA SIDDAPPA, ADVOCATE) AND: RAJU S/O LACHU LAMANI @ RATHOD, AGE:48 YEARS, OCC: AGRICULTURE / BUSINESS, R/O. HADAGALI LT NO.3 (TANDA), TQ. AND DIST.VIJAYAPURA -586127 …RESPONDENT (BY SRI YASHAS S. DIKSHIT, ADVOCATE) THIS CRL.P IS FILED U/S.482 OF CR.P.C. (OLD), U/SEC. 528 OF BNSS,2023 (NEW), PRAYING TO A) TO SET ASIDE THE IMPUGNED ORDER DATED 20.02.2024 PASSED IN CRIMINAL REVISION PETITION NO. 115/2023 ON THE FILE OF THE COURT OF THE II ADDITIONAL DISTRICT AND SESSIONS JUDGE VIJAYAPURA AT VIJAYAPURA. B) TO SET ASIDE THE IMPUGNED ORDER DATED 28.11.2022 PASSED Digitally signed by RENUKA Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC-K:1455 CRL.P No. 200026 of 2025 IN CC NO. 94/2017 (PRIVATE COMPLAINT NO. 595/2016) ON THE FILE OF THE COURT OF THE III ADDITIONAL CIVIL JUDGE AND JMFC III VIJAYAPURA AT VIJAYAPURA. C) TO SET ASIDE THE IMPUGNED ORDERS PASSED BY THE COURTS BELOW AND ALLOWING THE CRIMINAL PETITION FILED BY THE PETITIONER AND GRANT THE RELIEF AS SOUGHT FOR IN THE CRIMINAL PETITION. D) PASS SUCH OTHER ORDERS DEEMS FIT IN THE CIRCUMSTANCES OF THE CASE. THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE S RACHAIAH ORAL ORDER (PER: HON'BLE MR. JUSTICE S RACHAIAH) The petitioner is before this Court seeking to set aside the impugned order in C.C.No.94/2017 (Private Complaint No.595/2016) dated 28.11.2022 passed on the file of the Court of the III Additional Civil Judge and JMFC III, Vijayapura, which is confirmed in Criminal Revision Petition No.115/2023 dated 20.02.2024 passed on the file of the II Additional District and Sessions Judge, Vijayapura. - 3 - NC: 2025:KHC-K:1455 CRL.P No. 200026 of 2025 BRIEF FACTS OF THE CASE: 2. The complainant and accused are known to each other. It is stated that the accused stated to have borrowed a sum of Rs.2,00,000/- as hand loan on assuring the complainant that, he would repay the amount within two months. For the purpose of repaying the said amount, the accused has issued the cheque for the said amount. When it is presented for encashment, it came to be dishonoured. Therefore, a complaint came to be registered before the Trial Court. The Trial Court after having considered that the complainant has deliberately, remained absent on several occasions. Hence, the Trial Court dismissed the complaint on 28.11.2022. Being aggrieved by the same, the petitioner has approached this Court by way of filing this petition. 3. Heard Sri Bapugouda Siddappa, learned counsel for the petitioner and Sri Yashas S. Dikshit, learned counsel for the respondent. - 4 - NC: 2025:KHC-K:1455 CRL.P No. 200026 of 2025 4. It is the submission of the learned counsel for the petitioner that the Trial Court has dismissed the complaint for non-prosecution. However, due to unavoidable circumstances the complainant remained absent. It is also his submission that in spite of NBW having been issued to the accused, the accused never appeared before the Trial Court and the said NBW has never been executed against the accused. 5. It is further submitted that the complainant is having good case on merits. If the petition is not allowed, he would be put to untoward hardship. Therefore, the petition may be allowed with cost and permit the petitioner to lead evidence. 6. Per contra, learned counsel for the respondent vehemently submitted that the order passed by the Trial Court is nothing but an order of acquittal. Against such acquittal, the appeal should have been filed before the appropriate Court. However, inadvertently, the petitioner has filed the - 5 - NC: 2025:KHC-K:1455 CRL.P No. 200026 of 2025 Revision petition. Hence, the said petition has to be dismissed as not maintainable. 7. Having heard the learned counsel for the respective parties and also perused the order sheet, it would indicate that summons was issued to the accused on 07.01.2017. However, the accused did not appear before the Trial Court. Now, it is relevant to refer Section 256 of Cr.P.C., which reads as under: “Section 256-Non-appearance or death of complainant- If the summons has been issued on complaint, and on the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall notwithstanding anything hereinbefore contained, acquit the accused unless for some reason he thinks it proper to adjourn the hearing of the case to some other day; Provided that where the complainant is represented by a pleader or by the officer conducting the prosecution or where the Magistrate is of opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case. The provisions of Sub-Section (1) shall, so far as may be, apply also to cases where the non- appearance of the complainant is due to his death.” 8. On reading of the above said provision it makes it clear that the complaint can be dismissed for non-appearance of the complainant. Further, it states - 6 - NC: 2025:KHC-K:1455 CRL.P No. 200026 of 2025 that, if the summons, has been issued on complaint, and on the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall acquit the accused. 9. Having gone through the ratio of the above provision, it makes it clear that when the date is fixed for appearance of the accused, if the complainant does not appear, even in the absence of the accused, the Trial Court may dismiss the complaint and acquit the accused. 10. On going though the ratio, I am of the considered opinion that the order passed by the Magistrate in dismissing the complaint is nothing but an order of acquittal. Hence, the order of the acquittal has to be challenged by way of filing an appeal. When the provision of appeal is available, filing the petition under Section 482 of Cr.P.C., cannot be sustained. Therefore, the same has to be dismissed. 11. Hence, I proceed to pass the following: - 7 - NC: 2025:KHC-K:1455 CRL.P No. 200026 of 2025 ORDER i. The petition is dismissed. ii. The liberty is reserved to the petitioner to file against the order of the learned Magistrate in accordance with law. Sd/- (S RACHAIAH) JUDGE TMP List No.: 1 Sl No.: 1 CT:PK