Case Note & Summary
The complainant, Smt. H. Gayathri, filed a criminal revision petition before the High Court of Karnataka at Dharwad Bench, challenging the judgment and order dated 22.01.2011 passed by the II Additional Sessions Judge, Bellary in Crl.A. No.167/2009. The appellate court had set aside the judgment of conviction and sentence dated 27.11.2009 passed by the Principal Civil Judge (Jr.Dn.) and JMFC, Bellary in C.C. No.8/2008, whereby the accused (respondent) was convicted for an offence under Section 138 of the Negotiable Instruments Act, 1881. The complainant sought restoration of the complaint and confirmation of the conviction. The facts reveal that the complainant had filed a complaint alleging that the accused issued a cheque for Rs. 1,00,000 in discharge of a debt, which was dishonoured. The trial court convicted the accused. However, the appellate court reversed the conviction on the ground that the complaint had been dismissed for default earlier and the trial court ought not to have proceeded with the matter. The High Court heard the learned counsel for the petitioner, Sri V. Shivaraj Hiremath, and the learned counsel for the respondent, Sri V.G. Bhat. The court observed that the dismissal for default under Section 256 Cr.P.C. is not an acquittal and the complaint can be restored if sufficient cause is shown. The court held that the appellate court's reasoning was erroneous and that the interest of justice required restoration of the complaint. Consequently, the High Court allowed the revision petition, set aside the appellate court's order, and restored the complaint to the file of the trial court, directing the trial court to dispose of the matter afresh in accordance with law, after giving an opportunity of hearing to both parties. The court imposed a condition that the complainant shall pay costs of Rs. 5,000 to the respondent within four weeks.
Headnote
A) Criminal Procedure Code - Dismissal for Default - Restoration of Complaint - Section 256 Cr.P.C. - The complainant's complaint under Section 138 of N.I. Act was dismissed for default by the trial court. The appellate court set aside the conviction and sentence, holding that the dismissal for default was proper. The High Court held that dismissal for default is not an acquittal and the complaint can be restored in the interest of justice, especially when the complainant was prevented by sufficient cause. The court restored the complaint on condition of payment of costs of Rs. 5,000 to the respondent. (Paras 2-5) B) Negotiable Instruments Act, 1881 - Dishonour of Cheque - Section 138 - The complainant alleged that the accused issued a cheque for Rs. 1,00,000 which was dishonoured. The trial court convicted the accused, but the appellate court reversed the conviction on the ground that the complaint was dismissed for default. The High Court restored the complaint, observing that the appellate court's reasoning was erroneous as the dismissal for default was not an acquittal. (Paras 1-5)
Issue of Consideration
Whether a criminal complaint dismissed for default under Section 256 Cr.P.C. can be restored, and whether the appellate court was justified in reversing the conviction solely on the ground that the complaint was dismissed for default.
Final Decision
The High Court allowed the revision petition, set aside the appellate court's order dated 22.01.2011, and restored the complaint to the file of the trial court. The trial court was directed to dispose of the matter afresh in accordance with law, after giving an opportunity of hearing to both parties. The petitioner was directed to pay costs of Rs. 5,000 to the respondent within four weeks.
Law Points
- Dismissal for default is not an acquittal
- Restoration of complaint dismissed for default
- Section 256 Cr.P.C. does not bar restoration
- Inherent powers of court to prevent abuse of process
- Interest of justice
