IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF FEBRUARY 2017 BEFORE THE HON’BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL APPEAL NO. 1379 OF 2016 BETWEEN:
MR. GAURAV D. SHETTY, S/O N. DINAKAR SHETTY, AGED ABOUT 26 YEARS, R/AT NO.6, KAUSTABA, 11TH CROSS, GAYATHRI, H.B.C.S. RAJAJINAGAR, BENGALURU – 560 079. ... APPELLANT (By Sri: LOKESH K., ADVOCATE) AND MR. KARTHIK K.M., S/O MOHAN T., AGED ABOUT 25 YEARS, R/AT NO. S-97, 3RD CROSS, KIRLOSKAR COLONY, 3RD STAGE, WEST OF CORD ROAD, BENGALURU – 560 079. ... RESPONDENT ---
THIS CRL.A. FILED U/S.378 (4) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER DATED 18.07.2016 PASSED BY THE XXII A.C.M.M., BENGALURU, IN C.C. NO.15040/2016 ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 138 OF N.I. ACT.
THIS CRIMINAL APPEAL COMING ON FOR ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING:-
J U D G M E N T This appeal is preferred against the order dated 18.07.2016 passed by the XXII ACMM., Bengaluru in C.C.No.15040/2016 whereby the learned Magistrate has dismissed the complaint for default.
2. The appellant herein initiated the proceedings under Section 138 of Negotiable Instruments Act against the respondent. On recording the sworn statement, the learned Magistrate issued summons to the respondent on 26.06.2016 returnable by 18.07.2016. The ordersheet dated 18.07.2016 reads as under;
“Case called at 4.55 pm., complainant absent. No representation. After registering this case against the accused on 27.06.2016. The Court directed to pay the PF but till today the complainant did not paid PF. The parties might have compromised this case. Hence, the complainant did not turned up to take steps against the accused. Hence, complaint is dismissed for default.”
From the reading of the above order it can be gathered that the learned Magistrate has dismissed the complaint for default on the assumption that the parties might have compromised the matter. But, the records reveal that the respondent was yet to be served; therefore there was no basis for the observation made in the order The notice of the petition has been served on the respondent, but he has remained absent. Hence, in the interest of justice, the criminal appeal is allowed. The impugned order dated 18.07.2016 is set-aside, C.C.No.15040/2016 is ordered to be restored to file. The parties are hereby directed to appear before the court on 03.04.2017. If the respondent fails to appear before the trial Court as directed the petitioner shall take necessary steps for service of notice on the respondent as ordered by the Trial Court.
Sd/- JUDGE MR.