IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4TH DAY OF APRIL, 2019 BEFORE THE HON’BLE MR. JUSTICE ARAVIND KUMAR WRIT PETITION NO. 14656 OF 2019 (GM – RES) BETWEEN:
SRI. B.M.CHANDRA, S/O LATE B.K. MADAPPA, AGED ABOUT 44 YEARS, R/AT HALBUDANOOR VILLAGE, KASABA HOBLI, MANDYA TALUK – 571 401.
(BY SRI SHASHIKUMAR, ADVOCATE FOR SRI SHARATH S GOWDA, ADVOCATE) AND:
SRI. SATHISHA, S/O CHIKKATHAMMAIAH, AGED ABOUT 44 YEARS, R/O HALEBUDANOOR VILLAGE, KASABA HOBLI, MANDYA TALUK – 571 401.
...PETITIONER ...RESPONDENT THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA READ WITH SECTION 482 OF CR.P.C. PRAYING TO SET ASIDE THE ORDER DATED 20.10.2018 PASSED BY THE JUDICIAL MAGISTRATE FIRST CLASS AT MANDYA IN C.C.NO.857/2016 VIDE ANNEXURE – A AND CONSEQUENTLY RECALL THE ORDER DATED 20.10.2018 PERMITTING THE PETITIONER TO PROSECUTE THE PROCEEDINGS IN C.C.NO.857/2016 ON THE FILE OF JUDICIAL MAGISTRATE FIRST CLASS AT MANDYA AND ETC., THIS PETITION COMING ON FOR PRELIMINARY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Heard Sri Shashikumar, appearing on behalf of Sri Sharath S. Gowda, learned counsel for petitioner and perused the papers.
2. Petitioner-complainant herein filed a complaint under Section 200 of Cr.P.C. against respondent alleging that he had committed an offence punishable under Section 138 of Negotiable Instruments Act. On taking cognizance of offence, notice was issued to the respondent, which was duly served on accused and yet did not appear. Hence, NBW came to be issued way back on 25.02.2017. However, accused did not appear since warrant was not duly executed. For taking fresh steps, matter came to be listed before Court below time and again and on 24.08.2018, 28.09.2018 and 20.10.2018 complainant remained absent. Hence, matter was called more than three times on 20.10.2018 and at 5.30 p.m. Left with no other option, learned trial Judge has dismissed the complaint on account of petitioner-complainant being absent namely complaint came to be dismissed for non-prosecution. Hence, this petition is filed for quashing of the order dated 20.10.2018.
3. Sri Shashikumar, learned counsel appearing for the petitioner would vehemently contend that learned Trial Judge erred in dismissing the complaint without affording one more opportunity to the petitioner. The records disclose that no fault can be found with the Trial Court. However, in the interest of justice, complaint requires to be restored to file by granting one final opportunity to complainant and to direct learned trial Judge to proceed with the matter from the stage of dismissal by imposing conditions.
4. Hence, I proceed to pass the following:
ORDER (i) Criminal petition is allowed.
(ii) Order dated 20.10.2018 is set aside and complaint in PCR No.466/2015 now pending as C.C.No.857/2016 on the file JMFC, Mandya, is restored to its file to be proceeded in accordance with law from the stage it was set down when it came to be dismissed for non-prosecution.
(iii) Petitioner shall appear before the jurisdictional Magistrate on 26.04.2019 without awaiting for further notice and shall deposit a sum of Rs.1,000/- to Karnataka Clerks’ Benevolent Trust, A/c No.237010003206, Kotak Mahindra Bank, High Court Branch.
SD/- JUDGE TL