IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 9TH DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MR. JUSTICE H.P. SANDESH CRIMINAL APPEAL No.704 OF 2017 BETWEEN:
M/S. GREENSTONE ENTERTAINMENT, A REGISTERED PARTNERSHIP FIRM, HAVING ITS REGISTERED OFFICE AT: No.185/5 AND 6A, HORAMAVU AGARA, NEAR MILLENNIUM SCHOOL, K.R. PURAM, BENGALURU-560 036. REPRESENTED BY ITS PARTNER MR. MAYUR P.S.
... APPELLANT (BY SMT. NIDHISHREE B.V., ADVOCATE) AND:
1. M/S. COMMON COLORS ENTERTAINMENT PRIVATE LIMITED, HAVING ITS REGISTERED OFFICE AT No.8, 1ST FLOOR, KRISHNAPPA LAYOUT, RMV II STAGE, SANJAYNAGAR POST, DOLLARS COLONY, BENGALURU-560 094.
REPRESENTED BY ITS MANAGING DIRECTOR.
ALSO AT NO.303, RMV II STAGE, HIG, DOLLARS COLONY, BENGALURU-560 094.
2. MR. VILAS B. HIREGOUDAR @ VILAS GUDAGERI VIRUPAKSHAPPA, AGED MAJOR, MANAGING DIRECTOR, NO.8, 1ST FLOOR, KRISHNAPPA LAYOUT, RMV II STAGE, SANJAYNAGAR POST, DOLLARS COLONY, BENGALURU-560 094.
... RESPONDENTS (BY SRI SIJI MALAYIL, ADVOCATE) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4) OF CRIMINAL PROCEDURE CODE PRAYING TO SET ASIDE THE IMPUGNED ORDER DATED 21.02.2017 PASSED BY THE XXVII A.C.M.M., BENGALURU CITY IN C.C.NO.5854 OF 2015 – ACQUITTING THE RESPONDENT/ ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 138 OF NEGOTIABLE INSTRUMENTS ACT.
THIS CRIMINAL APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T This appeal is filed against the order dated 21.2.2017 in C.C.No.5854/2015 passed by the Court of the XXVII Additional Chief Metropolitan Magistrate, Bengaluru, dismissing the complaint for non-prosecution.
2. The grievance of the appellant is that the Court below has committed an error in dismissing the complaint for non-prosecution.
3. The learned counsel for the appellant submits that the Presiding Officer was not posted and the Court was vacant and subsequently the appellant could not appear before the Court below. The Court was vacant between 6.5.2016 and 2.1.2017 and the appellant was represented by the counsel and the learned Magistrate has failed to take note of the said fact. Hence, there are good grounds to set aside the order.
4. The learned counsel for the respondents submits that this Court can consider the circumstances under which the complaint was dismissed and he pointed out that though the Court below has passed an order to issue summons to the accused, the counsel appearing for the complainant did not pay the process fee. Subsequently, on 21.2.2017 at 4.00 p.m., the complaint was dismissed.
5. Having heard the arguments of the learned counsel appearing for the appellant and the respondents and taking into note of the order sheet, it is evident that the complaint was filed in the year 2015 and thereafter summons was ordered and the same was not returned. The order sheet also discloses that the Court was vacant from 17.6.2016 to 10.1.2017 and thereafter on 10.1.2017, the Court issued the summons to the accused, if process fee is paid and posted the matter to 4.2.2017. Again, the counsel for the complainant was absent and taking note of the same, complaint was dismissed for non-prosecution on the ground that since from 13.4.2015, the complainant is not pursuing the matter.
6. Having considered the factual aspect that the Court was vacant from June 2016 to January 2017 and thereafter only on two hearing dates, the complainant had not appeared, hence it is a fit case to set aside the order and to restore the complaint.
7. In view of the discussions made above, I pass the following:
ORDER (i) The appeal is allowed. The impugned order dated 21.2.2017 in C.C.No.5854/2015 passed by the Court of the XXVII Additional Chief Metropolitan Magistrate, Bengaluru, is set aside.
(ii) The Court below is directed to restore the complaint.
(iii) The learned counsel for the respondents is directed to take notice for the respondents before the Trial Court also.
(iv) Both the parties are directed to appear before the Trial Court on 18.11.2019.
(v) The respondents are directed to appear before the Trial Court without expecting any fresh summons.
Sd/- JUDGE MD