IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27th DAY OF FEBRUARY, 2019 BEFORE THE HON'BLE MR.JUSTICE ARAVIND KUMAR CRIMINAL PETITION No.10290 of 2017 BETWEEN:
M/s. Fila Rozil Exports Pvt. Ltd., A Company Incorporated under the Indian Companies Act, 1956 having its Registered Office at S-37, MIDC, Bhosari, Pune – 411 026 With its Executive Office at No.8, 1st Floor, Akshay Complex, Near Akshay Park, Lakshman Nagar, Opposite Seva Vikas Co-Operative Bank Ltd., Chinchwad, Pune – 411 033 Represented by its Managing Director Sri. Firoz M. Poonawalla. …. Petitioner (By Sri. N.G. Phadke, Advocate) AND:
Rudrapatna Venkataramaiah Pandharinath, (R.V. Pandarinath) in capacity as the Proprietor of Sumukha Flowers, Aged about 63 years, Occu-Business, Having place of business at: No.1 Canara Bank Colony, Uttarahalli Main Road, Opp. Shanti Sagar Hotel, Chikkalasandra, Bengaluru – 560 061.
Residing at No.G-19, KSRTC Layout, Chikkalasandra, Bengaluru – 560 061. … Respondent This Criminal petition is filed under Section 482 of Code of Criminal Procedure praying to set aside the order dated 28.03.2017 on the learned XVI ACMM, Bengaluru in C.C. No.16623/2009 of dismissing the case and this Hon’ble Court may be pleased to restore the said case on the file of the XVI ACMM, Bengaluru.
This petition coming on for Admission, this day, the Court made the following:
ORDER Heard Sri. N.G. Phadke, learned counsel appearing for petitioner and perused the case.
2. Petitioner herein filed a complaint under Section 200 of Cr.P.C, alleging that respondent had committed an offence punishable under Section 138 of the Negotiable Instruments Act 1881. Said complaint after having travelled upto Pune for want of jurisdiction has been returned to the jurisdictional Court, namely, the Magistrate Court at Bengaluru.
3. During the pendency of said case before the Bengaluru Court, for non-appearance of accused, warrant has been issued and said warrant was also not executed. NBW came to be issued on 23.12.2016 and process fee has also been paid by the complainant. As it was not duly executed, it was ordered to be re-issued on 13.01.2017 and matter came to be adjourned to 17.02.2017. Presiding officer was on leave and as such, matter was adjourned to 28.03.2017. On said date, complainant has remained absent and matter has been called thrice on said date and none have appears for the complainant. Hence, learned trial Judge has dismissed the complaint on the ground that there is lack of interest exhibited by the complainant in prosecuting the matter. Though no fault can be found at the doors of the complainant, fact remains that counsel for the complainant is said to have noted the date of hearing as 28.04.2017 instead of 28.03.2017 and as such, complainant and his counsel is said to have not appeared on 28.03.2017.
4. Order sheet would also disclose that complainant has appeared before the trial Court, intermittently though not regularly i.e., on several dates. The reason assigned for non-appearance of the complainant and his counsel on 28.03.2017 is a possible explanation which deserves to be accepted.
5. In the light of order sheet disclosing on most of dates of hearing, learned Advocate appearing for the complainant was present is also the reason for setting aside the impugned order and no prejudice will be caused to the respondent-accused, particularly, when accused yet to appear before trial Court.
Hence, the following:
ORDER i. Criminal Petition is allowed.
ii. Order dated 28.03.2017 passed in C.C. No.1662/2009 pending on the file of XVI Additional Chief Metropolitan Magistrate, Bengaluru is set aside and Complaint in question is restored to the file of trial court.
iii. The learned Magistrate shall proceed from the stage of issuing summons to the accused and if it is not duly served, further steps can be taken by the complainant.
Sd/- JUDGE MBM