N.RAVINDRA Vs. H.R.SHIVAKUMAR GUPTA

JUDGEMENT

(1.) Heard the learned counsel for the appellant and the learned counsel for the respondent.

(2.) Appeal is taken up for disposal at the stage of admission itself. A short question involved in this case is as to whether the trial Court has committed any serious error in dismissing the complaint for non- prosecution and discharge the accused therein, before commencement of evidence?

(3.) The order sheet of the trial Court discloses that after registration of the case against the accused, accused appeared before the Court after a sufficient long time accused had remained absent. Ultimately, on 20.6.2012 and 5.2.2012 the complainant remained absent when the case was posted for evidence. This conduct of the complainant has been considered seriously by the trial Court and consequently vide order dated 20.2.2016, the trial court has dismissed the complaint for non-prosecution due to the absence of the complainant as well as the complainant's counsel. 3. In a proceedings under Section 138 of the N.I. Act, the court should bear in mind that when the matter involves both civil and criminal liabilities and in such an eventuality, sufficient opportunity has to be given to both the parties for the purpose of prosecuting the case and also to defend the case by the accused. It do occur on one or two occasions that the complainant may not be able to appear before the Court. However, the Court has to look into the overall conduct of the complainant as well as the accused so as to come to a definite conclusion that, whether there was any deliberate occasion for the complainant in not assisting the Court and proceeding with the matter. On perusal of the entire order sheet it is seen that though there are some occasions where the complainant had remained absent but on some occasions, accused also had remained absent, which was graciously exempted by the trial Court. Further, the complaint averments discloses that there was involvement of a sum of Rs.2,50,000/- and that cheque has been issued for Rs.3,50,000/- and therefore, considering the stake in the transaction involved between the parties which is alleged to have been narrated in the complaint, in my opinion, one more opportunity is required to be granted to the complainant to proceed with the matter before the trial Court however, with stringent conditions. Hence, the following :