IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF AUGUST 2019 BEFORE THE HON’BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.6876 OF 2016 BETWEEN:
MR. N. SUNIL RAJ URS SON OF NARAYANA RAJ AGED ABOUT 28 YEARS R/O 30/1, 4TH CROSS AZAD NAGAR, CHAMARAJPET BENGALURU-18 ... PETITIONER (BY Ms. SIRI RAJASHEKAR, ADVOCATE FOR SRI: D R RAVISHANKAR, ADVOCATE) AND:
MR. NANJUNDA SWAMY AGED 30 YEARS TOKEN NO.15756 DRIVER, BMTC DEPOT NO.4, JAYANAGARA 4TH T BLOCK BENGALURU-41 ALSO AT DOOR NO.21 GROUND FLOOR K S R T C QUARTERS BLOCK NO.2 JAYANAGARA 4TH T BLOCK BENGALURU-41 ... RESPONDENT (RESPONDENT SERVED AND UNREPRESENTED) THIS CRL.P IS FILED U/S.482 CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 15.07.2016 IN C.C.NO.13285/2013 DISMISSED FOR DEFAULT BY THE VII ADDL. JUDGE AND XXXII A.C.M.M., BANGALORE BE ORDERED TO BE RESTORED TO ITS ORIGINAL FILE.
THIS CRL.P COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Heard learned counsel for petitioner. Respondent No.2 is served and unrepresented.
Petitioner is aggrieved by the order dated 15.07.2016 passed by the VII Addl. Judge & XXXII ACMM, Bangalore, whereby the complaint filed by the petitioner herein under section 138 of Negotiable Instruments Act is dismissed for non- prosecution.
2. The order sheet of the court below reveals that the complainant was examined-in-chief on 20.01.2015 and his cross-examination was deferred. On 19.2.2015, 19.3.2015, 23.4.2015, 30.7.2015, 21.9.2015 and 14.12.2015 PW.1 and accused were present, but the matter was not taken up for cross-examination. On 21.01.2016, PW.1 was present, but the accused sought time for cross-examination of PW.1. Even on the subsequent dates, on 09.02.2016 and 09.03.2016, PW.1 was present, but he was not cross-examined. But the on the subsequent dates, on 18.04.2016, 30.06.2016, 8.7.2016 and 15.07.2016, PW.1 was absent and hence, on 15.07.2016, recording the absence of PW.1, learned Magistrate was constrained to dismiss the petition for non-prosecution.
3. In view of the absence of the petitioner, learned Magistrate was justified in dismissing the petition for non- prosecution. However, as the order sheet reveals that as and when complainant/petitioner was present before the court, he was sent back without recording the evidence to be fair to the party, an opportunity may have to be given to tender himself for cross examination.
4. Thus, in the larger interest of justice, Order dated 15.07.2016 in C.C.No.13285/2013 passed by VII Addl. Judge & XXXII ACMM, Bengaluru is set-aside. PW.1 is directed to appear before the court on 05.09.2019 and on that day, Trial Court shall fix up a date for cross-examination of PW.1 and on the scheduled date, PW.1 shall be cross-examined without seeking any adjournment. On the date of his cross-examination, petitioner/complainant shall pay cost of Rs.3,000/- to respondent.
Petition stands disposed of in terms of the above order.
Sd/- JUDGE Bss