Complainant's Presence Not Necessary While Recording Plea Of Accused: Karnataka High Court Restores Complaint U/S 138 NI Act

A single judge bench of Justice P N Desai sitting at Kalaburagi allowed the petition filed by Nagaraj and restored the prosecution before Additional Civil Judge.

The bench said,

"For non-appearance of the complainant on each and every date of hearing, an order of acquittal cannot be passed in every case. The Court has to see the stage of the case and the previous appearance of the accused and complainant and how many years the complaint is pending and what is the nature of the case before passing any such dismissal order. Simply to dispose of the cases or get rid of the case, the complaint cannot be dismissed when there is no necessity of the presence of the complainant."

Case details:

A complaint came to be lodged by the appellant under Section 138 of N.I.Act in 2013. The present respondent who is accused did not appear before the Court for several years and NBW came to be issued. Thereafter, in 2018, the accused appeared and got himself released on bail. When the matter was posted for recording plea of accused, JMFC dismissed the complaint for non- appearance of the complainant.

The appellant filed a revision petition against said dismissal order, which was allowed and the complaint was restored to its original file. Against that order, respondent/accused filed a criminal petition which came to be allowed. Following which, instant appeal was preferred.

Findings:

The bench referring to the order sheet of the trial court noted that the case was posted for recording the plea of the accused. On 15.9.2018 the accused was absent, but the court without taking into consideration all these aspects after lapse of five years of lodging the complaint, kept the case pending for want of appearance of respondent/accused but, dismissed the complaint for non-appearance of the complainant when the case was posted for recording plea of the accused.

It observed,

"The complainant's presence at the time of recording the plea of the accused is not at all essential. It is the duty of the Court to record pleas of the accused by putting substance of accusation against him. The complainant's presence is not at all essential."

Referring to section 256 of the Criminal Procedure Code, the bench said,

"It is evident that the Court has to exercise its discretion judiciously. The proviso clearly indicates that when the Court is of the opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with attendance of complainant and proceed with the case."

Following which it held,

"Here the complainant is represented by an advocate. The stage of the case is for recording of a plea. The complainant's presence was not necessary and the recording plea is by the Court. It is the task to be performed by the Court for progress of the case. Therefore, when the presence of the complainant on that day is not necessary, the learned JMFC ought not to have dismissed the complaint for non-appearance of the complainant."

Case Title: NAGARAJ v. ISHWAR

Case No: CRIMINAL APPEAL NO.200033/2022

Citation: 2022 LiveLaw (Kar) 409

Date of Order: 30^TH DAY OF SEPTEMBER, 2022

Appearance: SANTOSH PATIL, ADVOCATE for appellant; M.A.JAGIRDAR AND G.B.YADAV, ADVOCATES for respondent