IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 05TH DAY OF APRIL, 2019 BEFORE THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.2408/2015 BETWEEN HARISH KUMAR, S/O THIMMAPPA M L AGED 49 YEARS, R/AT SAHARA ASSOCIATES, BHANDARY BETTU HOUSE, BANTWAL POST, BANTWAL TALUK, D K DISTRICT-574211. ... PETITIONER (BY SRI S RAJASHEKAR, ADV.) AND CHANDRAHASA SHETTY, S/O BOOBA SHETTY, AGED 59 YEARS, BAALIKE HOUSE, BONDATHILA P.O, MANGALORE TALUK, D K DISTRICT-575029. ... RESPONDENT (BY SRI P UDAYASHANKAR RAI, ADV. - ABSENT) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C PRAYING TO QUASH THE ORDER DATED 6.4.2015 PASSED BY THE J.M.F.C.-V, MANGALORE, D.K. IN C.C.NO.165/2012 BY ALLOWING THIS PETITION AND PERMIT THE PETR. TO LEAD FURTHER DEFENSE EVIDENCE BY SUMMONING THE WITNESS IN PURSUANT TO ORDER DATED 2.3.2015 ON HIS BEHALF.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Heard learned counsel for the petitioner. Learned counsel for the respondent is absent. Perused the records.
2. Petitioner is aggrieved by the order dated 06.04.2015 whereby the application filed by the petitioner under Section 311 of Cr.P.C. has been dismissed.
3. Learned counsel for the petitioner submits that on earlier occasion, trial Court issued summons to the witnesses, but since necessary process fee was not paid, the matter was posted for arguments. Hence, the petitioner sought to reopen the case. But, the learned Magistrate has rejected the said application on the ground that the petitioner/accused was not diligent in paying the process fee.
4. On reading the order sheet, it is noticed that necessary process fee was paid on 30.03.2015. In the said circumstance, the reasoning assigned by the learned Magistrate being factually incorrect, the impugned order cannot be sustained.
Consequently, the petition is allowed. The impugned order dated 06.04.2015 is set aside. The application filed by the petitioner under Section 311 of Cr.P.C. is allowed on payment of cost of Rs.2,000/-. The said cost shall be paid to the complainant on the next date of hearing before the trial Court. The trial Court to issue summons to the witnesses and to proceed in the matter in accordance with law. If cost is not paid on the next date of hearing before the trial Court, this order shall become inoperative.
Sd/- JUDGE VM CT-HR