The main legal point established in the judgment is the discretion of the magistrate to proceed with the case even in the absence of the complainant, as provided in Section 256 of the Code of Criminal Procedure, 1973, and the need for a justice-oriented approach in condoning delays and ensuring progress in the case.

JUDGMENT

P.N. Desai, J. - Appeal is filed assailing the order dated: 17.10.2018 passed by Vth Additional Civil Judge and JMFC Court at Kalaburagi in C.C.No. 2735/2013, wherein the learned JMFC dismissed the case for non-prosecution.

2. The brief case which has given rise for consideration of this appeal is that:-

The appellant was a complainant before the Trial Court who filed a private complaint against the respondent/accused for offences under Section 138 of Negotiable Instruments Act, 1881 (for short hereinafter referred to as 'N.I Act'). After recording the sworn statement, the criminal case number was given as C.C.No.2735/2013, but the said case came to be dismissed for non-prosecution, as the complainant has not appeared before the Court. Being aggrieved by the impugned order, this appeal is filed.

3. Heard Sri. Santosh Paitl, learned counsel for the appellant and Sri. M.A.Jagirdar, learned counsel for the respondent.

4. The learned counsel for the appellant argued that the learned JMFC has not dismiss the case on merits instead the case was dismissed for default. Learned counsel submits that respondent/accused has borrowed a sum of Rs.4,50,000/- from the complainant. But the accused did not repay the said amount and when the complainant approached him, the accused gave a cheque bearing No.037971 dated 12.02.2013 in favour of the complainant drawn on IDBI Bank Ltd., Kalaburagi. But the said cheque given by the respondent/accused came to be dishonoured with an endorsement 'in sufficient fund'. Hence, the complainant issued a legal notice. Even then the respondent/accused did not turn-up to pay the amount. Hence the complainant filed a private complaint. But the Trial Court has dismissed the case of the complainant for default. Learned counsel argued that infact challenging the dismissal order, the appellant filed a revision petition under Section 397 of Code of Criminal Procedure, 1973 (for short hereinafter referred to as 'Cr.P.C') before the learned Sessions Judge in Crl.R.P.No.2/2019, learned Sessions judge vide order dated 21.10.2019 allowed the petition and directed to restore C.C.No.2735/2013 to its original file. Aggrieved by the said order, the respondent/accused filed a petition under Section 482 Cr.P.C., before this Court, wherein this Court allowed the petition and held that the remedy of complainant/appellant is to file an appeal. Hence he has filed this appeal. Learned counsel also argued that this Court by order dated 16.8.2022 has condoned the delay. Looking into the stage of the case and the cheque amount involved, he prays to allow the appeal by remanding the matter back to the trial Court.

5. Against this learned counsel for respondent/accused agued that there is an exorbitant delay in filing the appeal. Even looking into the averments made in the appeal, it does not show why he has not presented the appeal before this Court well in time. There are no valid grounds in the appeal to allow the appeal. The appellant should give detail reason for restoration of the case. In paragraph No.8 of the appeal memo, the grounds stated with regard to limitation cannot be considered, as it does not disclose sufficient cause for filing the appeal at a belated stage. In view of the fact that there is inordinate delay in filing the appeal, if the appeal is allowed and the C.C.No.2735/2013 is restored to its original file, it will cause much hardship to the respondent/accused, as there is no bonafide reason mentioned for non-appearance of complainant/appellant before Trial Court. The learned counsel in support of his arguments, relied on the decision of Bombay High Court in the case of Vamsi Labs Private Ltd. Vs. Alpine laboratories, passed in Criminal Appeal No.498 Of 1998 dated 15.11.2019, wherein the Bombay High Court at paragraph No.6 has considered that there is no explanation regarding absence of complainant or his pleader. The Bombay High Court held that the Magistrate has rightly exercised jurisdiction under Section 256