IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF MARCH, 2019 BEFORE THE HON’BLE MR.JUSTICE ARAVIND KUMAR CRIMINAL PETITION NO.6521/2018 BETWEEN:
SMT. PRAMEELA GOWDA W/O LINGEGOWDA, AGED ABOUT 40 YEARS, CHAIRMAN, PRAMEELA GOWDA EDUCATION TRUST, 14TH CROSS, K.G. THIMMAIAH ROAD, KENGERI NEW TOWN, SUN CITY, BENGALURU
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 CR.P.C PRAYING TO SETASIDE THE ORDER DATED 11.04.2016 IN C.C. NO.13617/2013 ON THE FILE OF THE XXI A.C.M.M. BANGALORE AND RESTORE THE FILE.
THIS CRIMINAL PETITION COMING ON FOR ‘ADMISSION’ THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Though matter is listed for Admission, same is taken up for Final Disposal. Notice to respondent is dispensed with for two reasons:-
i) Respondent is yet to appear before the trial court.
ii) Proceedings in question is of the year 2012 and pending before the trial court for the past six years.
2. Having heard Sri. Kemparaju, learned counsel appearing for the petitioner and on perusal of case papers it would disclose that petitioner has filed a complaint under Section 200 of Criminal Procedure Code against respondent alleging that he had committed an offence punishable under Section 138 of Negotiable Instrument. After registering the complaint, sworn statement came to be recorded and notice was ordered to the respondent-
accused. Thereafter, continuously complainant and his counsel have remained absent. There was change of counsel on 06.09.2014. Subsequently, trial court has ordered issuance of non-bailable warrant to the accused, which was not executed for want of correct address. Hence, to enable the complainant to take fresh steps in the matter it has been adjourned from time to time and on 19.03.2016 fresh steps was taken by the complainant and non-bailable warrant has been returned on account of address of the accused having not been traced. On 11.04.2016 matter has been called at different intervals of time as is evident from the order sheet and there was no appearance on behalf of the complainant. Steps had not been taken and as such learned trial court judge having no other option dismissed the complaint for default and non-prosecution. Therefore, petitioner is before this court for quashing of said order.
3. Sri. Kemparaju, learned counsel appearing for the petitioner would contend that petitioner-complainant is having a good case on merits and it should not have been dismissed on technical grounds. However, fact remains though the matter was called repeatedly at different intervals on 11.04.2016 none have appeared on behalf of the complainant and no explanation whatsoever is forthcoming from the present petitioner disclosing cause for non appearance. Hence, no fault can be attributed to the learned trial court judge in dismissing the complaint. However, in the interest of justice one final opportunity deserves to be granted particularly in the background of counsel for the complainant having changed and new counsel having taken steps on 19.03.2016 as also on the ground that learned counsel appearing for the petitioner fairly submitted before this court that he would deposit a sum of Rs.5,000/- as costs for default.
4. For the reasons aforestated, I pass the following:-
ORDER a) Criminal Petition is allowed.
b) Order dated 11.04.2016 in C.C. No.13617/2013 dismissing the complaint is hereby set-aside.
c) Complaint (C.C. No.13617/2013) is restored to file and trial court shall proceed from the stage of issuing NBW to accused and petitioner/complainant shall appear before the learned trial judge on 11.04.2019 without waiting for further notice from the trial court.
SD/- JUDGE Chs*