IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF OCTOBER, 2019 BEFORE:
THE HON’BLE MR. JUSTICE K.N. PHANEENDRA CRIMINAL APPEAL No.331 OF 2014 BETWEEN:
M/S AMAR & CO NO.17, B, 3RD SHOP LANE SILK FARM, 14, BASAVANAGUDI BANGALORE-04 R/BY ITS MANAGER, J.VASANTHKUMAR ... APPELLANT (BY SRI C M VENKATA REDDY, ADVOCATE) AND:
C MANCHAIAH PROPRIETOR OF MAHALAKSHMI DRUG HOUSE, NO.924/1, 7TH CROSS, KENGERI SATELLITE TOWN, BANGALORE 560 060.
... RESPONDENT (RESPONDENT SERVED AND UNREPRESENTED) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4) CR.P.C PRAYING TO SET ASIDE THE ORDER DATED:9.1.2014, PASSED BY THE XVI ACMM, BANGALORE, IN C.C.NO.86/2011 - ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE P/U/S 138 OF N.I. ACT.
THIS APPEAL COMING ON FOR ORDERS, THIS DAY, THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT Heard the learned counsel for the appellant- complainant. The respondent/accused though served with notice by this court remained absent. No representation.
2. For the reasons stated in the affidavit filed in support of the application, I.A.No.1/2015 is allowed. Special leave is granted to prefer this appeal. Perused the records.
3. This appeal is preferred against the order dated 09.01.2014 passed by the XVI ACCM, Bengaluru in C.C.No.86/2011 in dismissing the complaint for default. The record discloses that after recording the plea of the accused on 11.10.2012, the case was posted on various occasions giving long dates for evidence. But the complainant remained absent on 3 occasions. There is no mention about the presence of the complainant in the order sheet. On 09.01.2014, also the complainant remained absent. Therefore, the complaint came to be dismissed for default. The order of the learned Magistrate is technically correct. But the learned counsel for the appellant submitted that on that particular date, the complainant was actually present outside the court and learned counsel was engaged in some other court and therefore counsel could not reach the court in time resulting dismissal of the complaint. The learned counsel also showed to the court that on the same day the complainant has sworn to an affidavit before the notary for the purpose of filing by way of evidence along with list of documents etc. Therefore, submission of the learned counsel is substantiated by the material shown to the court. The affidavit and list of documents produced are perused by the court and same was returned.
4. In view of the facts and circumstances of the case, in my opinion, the impugned order challenged in this appeal deserves to be set aside for the purpose of granting one more opportunity to co-operate with the Trial Court for expeditious disposal of the case. Hence, the following ORDER (i) The appeal is allowed.
(ii) The order dated 09.01.2014 passed in C.C.No.86/2011 on the file of XVI ACMM, Bangalore, is hereby set aside. Consequently, case in C.C.No.86/2011 is restored on to the file of the said court with a direction that after securing the presence of the complainant and accused the case has to be disposed of as expeditiously as possible, on its merits.
Sd/- JUDGE KLY/