IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY CRIMINAL APPEAL No.1646 OF 2016 BETWEEN:
Miss G.Usha, D/o. Late Gangaiah, Aged 29 years, Residing at No.77/1, Pipeline East, Kasthuribhainagar, Bengaluru-560 026. ...Appellant (By Sri. S.Velumurugan, Advocate) AND:
Mrs. Yasodha W/o. Sri. Achappa, Aged about 58 years, Residing at No.03, Sri. Enclave, Old Airport Road, Murugeshpalya, Bengaluru-560 017.
Also at Mrs. Yasodha, Section Superintendent, State Crime Record Bureau, 7th Floor, M.S.Building, 1st Gate, Bengaluru-560 001. ...Respondent (By Sri. A.N.Radhakrishna, Advocate) This Criminal Appeal is filed under Section 378(4) of Cr.P.C praying to set aside the order of dismissal for non- prosecution in C.C.No.755/2016 dated:16.08.2016 passed by the XVI ACMM, Bengaluru and to restore the complaint in C.C.No.755/2016 to the XVI ACMM, Bengaluru to its original stage for trial.
This Appeal coming on for Admission, this day, the Court delivered the following:
JUDGMENT Both side present and submitted that though their matter is listed for admission the same can be disposed of finally on merits.
2. Heard arguments and perused the materials placed before this Court.
3. The appellant as complainant in the Court below, had instituted a private complaint under Section 200 of the Code of Criminal Procedure, 1973, against the present respondent alleging commission of the offence punishable under Section 138 of Negotiable Instruments Act, 1881.
4. The impugned order dated 16.08.2016 go to show that the trial Court noticing that the complainant has remained absent though called on different dates of hearing and has not appeared for enquiry, has dismissed the complaint for non-prosecution. It is against the said order, the complainant/appellant has preferred this appeal.
5. On a perusal of the order sheet of the Court below, which is produced along with this Memorandum of Appeal, it appears that the trial Court has granted several and sufficient opportunities for the complainant before it to proceed further in the matter. Even on 16.08.2016, which is the date of impugned order also, in three rounds at different times during the course of proceedings the matter was taken up and only thereafter, proceeded to pass the impugned order of dismissal of complaint for non-prosecution. As such, even though it could be noticed that sufficient opportunities were given to the complainant, but still considering the nature and circumstance of this case, I am of the view that in the best interest of justice, one more opportunity be given to the complainant to proceed further in the matter. However, the same would be on cost payable by the complainant to the accused, since the accused was put to inconvenience for non-appearance of the complainant in the Court below and to proceed further in the matter on time.
6. Accordingly, the appeal is allowed on cost of `5,000/- (Rupees Five Thousand only) payable by the complainant to the accused within a week from today and subject to the payment of cost, the order dated 16.08.2016 passed by the XVI Additional Chief Metropolitan Magistrate, Bengaluru in C.C.No.755/2016, dismissing the complaint for non-prosecution is set aside. The said C.C.No.755/2016 is restored on the file of the Court below in its original stage.
7. Both parties are directed to appear before the trial Court without anticipating any fresh notice or summons from it on 18.03.2019 and to participate in further proceedings.
8. Registry to transmit a copy of this order to the Court below, without delay.
Sd/- JUDGE BMC