IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF APRIL, 2019 BEFORE THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION No.7033/2013 BETWEEN:
AGRICULTURAL PRODUCE MARKET COMMITTEE B.H. ROAD, SHIMOGA-577 201 REP. BY ITS SECRETARY SRI. M.A. NAGARAJ S/O. ANNEGOWDA AGED 43 YEARS A.P.M.C YARD B.H. ROAD, SHIVAMOGGA. ... PETITIONER (BY SRI. T.SWAROOP, ADV.) AND:
D.V. SUBBARAO S/O. VENKATASUBBAIAH AGED ABOUT 68 YEARS PROPRIETOR OF SRI LAKSHMI VENKATESHWARA SAW MILL AND INDUSTRIES SHESHADRIPURA, HONNALI ROAD SHIMOGA-577201. ... RESPONDENT (BY SRI SHOWRI H.R., ADV.) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 CR.P.C PRAYING TO SET ASIDE THE IMPUGNED ORDER OF DISMISSAL OF THE COMPLAINT AND ACQUITTAL ORDER OF THE ACCUSED, FOR NON PROSECUTION OF THE COMOPLAINT PASSED BY THE III ADDL. JUDICIAL MAGISTRATE, I CLASS AT SHIMOGA IN THEIR VIDE ORDER DATED 30.04.2011 AND ETC.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Heard learned counsel appearing for the petitioner and learned counsel appearing for respondent. Perused the records.
2. Petitioner is aggrieved by the order dated 30.04.2011, whereby, the learned Magistrate has dismissed the complaint filed by the petitioner herein for non-prosecution.
3. Briefly stated the facts of the case are that the petitioner herein in his capacity as the Secretary to the APMC Yard, Shimogga, filed a complaint under Section 200 of Cr.P.C. read with Sections 8, 65, 66, 81, 114, 116, 117 and 117A of the Karnataka Agricultural Produce Marketing (Regulation) Act, 1966. On recording the plea of the accused, the matter was set down for evidence of the complainant on 30.04.2011. The complainant did not appear before the Trial Court on the said date. His advocate moved an application under Section 309 of Cr.P.C. The said application was rejected and consequently, the complaint came to be dismissed for non-prosecution.
4. The learned counsel for the petitioner submits that on the previous date of hearing, the complainant was present and for want of time, he was bound over. But on 30.04.2011, on the ground of marriage of his daughter, the complainant could not appear before the Court. Under the said circumstances, the learned Magistrate ought to have given an opportunity to the petitioner to substantiate his case, as the complaint was filed for non-payment of market fee by the accused/respondent herein amounting to more than Rs.3,88,047.65/-.
5. On perusal of the order sheet, it is noticed that on 07.01.2011, the complainant and accused were absent and the matter was adjourned to 18.02.2011. On 18.02.2011, the Presiding Officer was on training and the matter was adjourned to 30.04.2011. On 30.4.2011, an application was filed on behalf of the complainant seeking exemption. However, the learned Magistrate rejected the said application on the ground that complainant has failed to adduce evidence for more than two years after filing of the complaint. Even the Revisional Court has dismissed the revision on the same ground.
6. In my view, the earlier absence of the complainant should not have weighed with the trial court while considering the cause shown by the complainant for his absence on the date on which he was required to be present before the court. Insofar his absence on the date of his examination, sufficient reason was given by the petitioner and both the Courts have failed to consider the reasons assigned in the application. Taking into consideration all above facts and circumstances, in my view and in the larger interest, another opportunity is required to be afforded to the complainant to substantiate his case.
7. For the aforesaid reasons, petition is allowed and the impugned order passed by the Learned Magistrate in C.C.No.3154/2009 dated:30.04.2011 and the order passed by the Revisional Court in Crl.R.P.No.125/2011 dated: 13.03.2013 are hereby set aside. Application filed by the complainant under Section 309 of Cr.P.C. is allowed on payment of cost of Rs.1,000/-. The cost will be deposited with the trial Court within 15 days from the date of this order. Thereafter, the trial Court shall proceed with the matter in accordance with law.
Both the parties shall appear before the trial Court on 28.05.2019 without further notice.
If the cost is not deposited within 15 days from today, this order shall become in-operative.
JS/-
Sd/- JUDGE