DATED

12.08.2022

AND

RESTORE

THE

C.C.NO.305/2021 TO FILE AND ETC.,

Digitally

signed by N

UMA

Location:

HIGH COURT

OF

KARNATAKA

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THIS CRIMINAL APPEAL, COMING ON FOR HEARING,

THIS DAY, THE COURT DELIVERED THE FOLLOWING:

JUDGMENT

This appeal is filed challenging the dismissal of complaint

filed by the complainant on 12.08.2022 in C.C No.305/2021 on

the file of learned IV Additional Small Causes Judge and

Additional Chief Metropolitan Magistrate, Bengaluru.

2.

The appellant was the complainant and respondent

was the accused before the trial Court. The appellant filed a

private complaint under Section 200 of Cr.P.C for the offence

punishable under Section 138 of the Negotiable Instruments

Act (for short ‘N.I Act’) for dishonor of cheque for a sum of

Rs.15,20,000/- issued by the respondent. The learned

Magistrate took cognizance of the offence and registered the

case. The accused appeared before the Court. The

complainant gave evidence. The matter was posted on

12.08.2022 for cross-examination of PW.1. On that day, the

complainant could not appear as she was not well. The

complainant’s counsel was also not well and he reached the

Court at 3.45 p.m. Then they came to know that the case was

dismissed for non prosecution. On the same day, the learned

counsel filed an application for restoration of the complaint.

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The learned Magistrate took the application on record and fixed

the date of hearing as 05.09.2022. The respondent filed an

objection to the application filed by the complainant. The

learned Magistrate dismissed the application on 28.09.2022

holding that the trial Court has no power to restore the case

and the complainant can seek appropriate remedy before

appropriate authority. Accordingly, this appeal is filed by the

complainant.

3.

Sri.C.Shankar Reddy, learned counsel for the

appellant stated that the complaint was dismissed on

12.08.2022 but on the same day the application was filed for

recalling the said order. As the trial Court rejected the

application filed by the appellant/complainant, therefore, he

requested to dispose of the matter and allow appeal by giving

opportunity to appellant to prove his complaint on merits.

4.

The respondent though served has remained

absent.

5.

I have perused the order sheet. The order sheet

discloses that on 11.01.2021, the sworn statement of the

complainant was taken and documents were also marked. The

learned Magistrate took cognizance of the offence and

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registered a case and issued summons to the accused. The

matter was posted to 04.02.2021. Again on 04.02.2021, the

summons was issued to the accused. Though summons was

served upon the accused, he remained absent and NBW was

issued on 28.12.2021. On 22.02.2022, the accused appeared

before the Court and he was enlarged on bail. Plea of the

accused was recorded. The order sheet dated 22.02.2022

shows that a very strange procedure is adopted by the learned

Magistrate. It is typed that plea is recorded plea read over and

explain to the accused, he pleads not guilty and claims to be

tried and again the same is typed in the order sheet. Again it is

stated in the order sheet that statement under Section 313 of

Cr.P.C is read over and explained to the accused, he denied all

incriminating circumstances and intends to lead defence

evidence and NBW was recalled. The matter was adjourned to

17.03.2022 for cross of PW.1.

6.

It is pertinent to note that when the main evidence

itself is not led and when there is no cross-examination, the

question of recording statement under Section 313 of Cr.P.C

does not arise. The scope, object and purpose of recording

statement under Section 313 of Cr.P.C is to give an opportunity

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to the accused to explain any circumstances appearing against

him in the evidence of prosecution or complainant. It is further

noted that the evidence includes examination-in-chief, cross-

examination and re-examination, if any. In this case there is

no cross-examination at