IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF JULY 2019 BEFORE THE HON’BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION No.2040/2015 BETWEEN:
M/S SREE GOKULAM CHIT & FINANCE CO (P) LTD., #24, I FLOOR, 80 FEET ROAD, HMT LAYOUT, R.T.NAGAR, BENGALURU-560032.
REP: BY ITS GPA HOLDER: SRI P.J. SANIL, S/O SHANTHI JOSEPH, CHRISTIAN, AGED ABOUT 26 YEARS.
AND:
... PETITIONER (BY SRI B.S. GURUDATH, ADVOCATE) SRI AZEEZULLA KHAN S/O LATE SADAULLA KHAN, MUSLIM, MAJOR, #2, MUNISWAMAPPA ROAD, NEAR J.C. NAGAR POLICE STATION, BENGALURU-560006.
... RESPONDENT (BY MS. HARSHITHA KADAM N.V., ADVOCATE FOR SRI SYED IRSHAD AHMED, ADVOCATE) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 28.1.2015 PASSED BY THE XXVI-ACMM (SCCH-NO.9) BENGALURU, DISMISSING THE COMPLAINT IN C.C.NO.34627/2011 AND RESTORE THE COMPLAINT TO FILE AND THEREBY PERMITTING THE COMPLAINANT/PETITIONER, HEREIN TO TAKE STEPS IN THE ABOVE CASE AND TO PROSECUTE THE SAID CASE ON MERITS.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Heard learned counsel for petitioner and learned counsel for respondent.
2. Petitioner is aggrieved by the order dated 28.1.2015 passed by the XXVI Additional Chief Metropolitan Magistrate, Bengaluru, whereby the complaint filed by the petitioner under Section 138 of Negotiable Instruments Act, 1881 has been dismissed.
3. On perusal of the order sheet, it is noticed that the complaint was presented to the Court by the complainant in person on 5.5.2011. His sworn statement was recorded and summons was issued to the respondent/accused returnable by 31.1.2012. Accused appeared before the Court pursuant to the summons and was enlarged on bail. Plea of the accused was recorded. Thereafter, the case was transferred from XIII ACMM to XXVI ACMM on 14.2.2014. Hence, fresh summons was issued to the accused. Since the accused could not be secured, non-bailable warrant was issued to the accused. The petitioner at the first instance paid the requisite process fee, but later on the complainant appears to have failed to furnish the process fee for issuance of the warrant and consequently on 28.1.2015, complaint came to be dismissed noting the absence of the complainant.
4. The above facts indicate that the petitioner/complainant has been diligently pursuing the complaint and had in fact paid the process fee for service of warrant to the accused at the first instance. On the previous date of posting, the Presiding Officer was on leave and the matter was adjourned to 28.1.2015, on which date the complainant was absent.
5. Having regard to the above facts, in my view, an opportunity is required to be given to the complainant to substantiate his case. The failure of the complainant to furnish process fee does not appear to be intentional or deliberate. Therefore, taking into consideration the facts and circumstances of the case, the petition is allowed. The impugned order dated 28.1.2015 is set aside. The Trial Court is directed to restore C.C.No.34627/2011 to file. In order to expedite the trial, the parties are directed to appear before the Magistrate on 13.8.2019 without any further notice.
6. Petition stands allowed in terms of the above order.
Sd/- JUDGE MD