IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 9TH DAY OF APRIL, 2019 BEFORE THE HON’BLE MR. JUSTICE ARAVIND KUMAR CRIMINAL PETITION NO.255/2019 BETWEEN:
ASCHEM AGROTECH PVT. LTD., REGISTERED OFFICE AT IS-21 KHB INDUSTRIAL AREA YELAHANKA NEW TOWN BENGALURU - 560 106 R/BY ITS MANAGING DIRECTOR MR. BHARATH TANDON ... PETITIONER (BY SRI. J.S. HALASHETTI., ADVOCATE) AND:
1. AURO PHARMACEUTICALS & FINE CHEMICALS PVT. LTD., REGISTERED OFFICE AT “DADHE-RUIKAR HOUSE” 2007, SADASHIV PETH TILAK ROAD, PUNE-411 030 R/BY ITS MANAGING DIRECTOR DR. UMESH JOSHI.
2. DR. UMESH JOSHI MANAGING DIRECTOR AURO PHARMACEUTICALS & FINE CHEMICALS PVT. LTD., REGISTERED OFFICE AT: “DADHE-RUIKAR HOUSE” 2007, SADASHIV PETH TILAK ROAD, PUNE-411 030.
3. SMT. JANAKI UMESH JOSHI ADDITIONAL DIRECTOR AURO PHARMACEUTICALS & FINE CHEMICALS PVT. LTD., REGISTERED OFFICE AT “DADHE-RUIKAR HOUSE” 2007, SADASHIV PETH TILAK ROAD, PUNE-411 030.
ADDRESS NO.2 AND 3 ALSO AVAILABE AT: S.NO.62+65 PLOT NO.376, MAHATMA SOCIETY KOTHRUD, PUNE-411 038.
... RESPONDENTS THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 CR.P.C PRAYING TO SET ASIDE THE ORDER DATED:12.10.2018 PASSED BY THE COURT OF 27TH ACMM, BENGALURU, IN C.C.NO.11297/2016 (PCR NO.15254/2014) FOR THE OFFENCE P/U/S.138 OF N.I ACT, AGAINST THE RESPONDENTS, WHICH IS PRODUCED AS ANNEXURE F, AND DIRECT THE TRIAL COURT TO DISPOSE OF THE CASE IN ACCORDANCE WITH LAW.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Heard Sri J.S.Halashetti, learned Advocate appearing for petitioner. Perused the records.
2. Petitioner herein has filed a complaint under Section 200 Cr.P.C. against accused persons alleging that they have committed an offence punishable under Section 138 of Negotiable Instruments Act, 1881 (for short ‘NI Act’). Said complaint came to be presented before XXVII Additional Chief Metropolitan Magistrate, Bengaluru. Thereafter it was transferred to Court at Pune and by virtue of amendment to Section 142A of NI Act, matter was transferred back to CMM Court at Bengaluru in the year 2015, as such, learned trial Judge has issued notice. Notice issued through RPAD to accused has been returned with postal shara “left”. Subsequently, NBW came to be issued to the accused and process fee was paid on 07.10.2017. Though learned Advocate appearing for petitioner is correct in contending that trial Court ought to have awaited report of NBW issued to the accused, taking into account age of the case being more than 3 years old and the fact that notice was not served on the accused and even NBW issued has not been executed and there was no report forthcoming from the jurisdictional police, to expedite hearing, learned trial Judge has permitted the petitioner to pay process fee and for said purpose, matter has been listed before Court on more than one occasion. However, as could be seen from the order sheet dated 12.12.2017, 17.02.2018 and 26.04.2018, complainant has continuously remained absent. Even when he appeared on 02.07.2018, learned trial Judge has made it explicitly clear that notice is to be issued to the accused by executing NBW and as such, ordered for payment of process fee. However, complainant has not furnished process fee and as such, noticing that complaint is of the year 2015 and steps have not been taken in the matter by the complainant to secure the presence of accused, learned trial Judge has closed the complaint.
3. It is no doubt true that as observed herein above, report of the jurisdictional police with regard to execution of NBW issued to the accused ought to have been received by trial Court and thereafter matter ought to have been proceeded with.
Obviously, with an intention to expedite hearing, learned trial Judge has ordered for re-issuance of NBW. In that view of the matter, no fault can be laid at the doors of learned trial Judge. Be that as it may. The fact remains that petitioner was absent for more than three years. Though learned trial Judge could have dismissed the complaint for non-appearance, yet has extended benevolence by granting further time.
4. Though learned Advocate appearing for petitioner would press Section 82 Cr.P.C. to contend that learned trial Judge ought to have taken steps for proclamation, same would not arise in the instant case, inasmuch as, proceedings under Section 81 has been taken and even on issuance of proclamation, steps are to be taken in case of complaint is filed under Section 200 Cr.P.C., which should be by the complainant himself namely, complainant has to pay process fee. In the instant case, as noticed herein above, complainant has not paid process fee for issuance of NBW and as such, complaint has been closed. However, in the interest of justice, an opportunity deserves to be granted to the petitioner to prosecute his case before learned trial Judge conditionally.
Hence, I proceed to pass the following:
ORDER (i) Criminal petition is allowed with costs of Rs.5,000/-.
(ii) Order dated 12.10.2018 passed by XXVII Additional Chief Metropolitan Magistrate, Bengaluru in C.C.No.11297/2016 (arising out of PCR NO.15254/2014) is set aside and complaint is restored to file of the jurisdictional Court, who shall proceed further in the matter to issue NBW in the event of process fee being paid by the petitioner on the next date of hearing which is fixed as 15.05.2019.
(iii) Petitioner shall deposit costs of Rs.5,000/- to Chief Minister’s Flood Relief Fund.
SD/- JUDGE *sp