IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF FEBRUARY, 2019 BEFORE THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION No.8538 OF 2016 BETWEEN:
SRI. B.N. BASAVARAJU S/O. NANJAPPA AGED 67 YEARS R/AT NO.88, 4TH CROSS, OKALIPURAM, BANGALORE – 560 060 …PETITIONER (BY SRI. R. HARIPRASAD, ADVOCATE FOR SRI. V.P. RAVIRAJ, ADVOCATE) AND:
SRI. LINGE GOWDA AGED ABOUT 55 YEARS PROPRIETOR M/S. SRI. KALABYRAVESHWARA SWAMY ENTERPRISES AT HOTEL CAUVERY [NON-VEGETARIAN HOTEL] 80 FEET RING ROAD BANGALORE – 560 056 ...RESPONDENT THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C. PRAYING TO SET ASIDE THE ORDER DATED 21.09.2015 PASSED BY THE XV A.C.M.M., BANGALORE IN P.C.R. NO.21457/2013 AND RESTORE THE PETITION AND ALLOW THIS PETITION.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Heard learned counsel for the petitioner.
2. Petitioner is aggrieved by the order passed by the learned Magistrate dismissing the complaint for non prosecution.
3. The order sheet maintained by the learned Magistrate in PCR No.21457/2013 reveals that Advocate for the complainant presented a private complaint and the same was directed to be put up on 29.04.2014 Thereafter, the matter was listed before the Court ten times and on all the dates of hearing, complainant remained absent and having no other option, by order dated 21.09.2015, the learned Magistrate dismissed the complaint for default. The order reads as follows:
“Complainant and counsel absent. No representation perused. Inspite of granting sufficient time, complainant has failed to record his sworn statement. Hence complaint is dismissed for default .”
4. Learned counsel for the petitioner submits that the petitioner is a senior citizen and therefore he was unable to appear before the court below.
5. The said reason cannot be accepted as justifiable ground to set aside the impugned order. However, having regard to the fact that the petitioner having laid a claim in respect of dishonoured cheque, in my view, in the interest of justice, opportunity may have to be granted to the petitioner to substantiate his claim before the trial Court.
6. Accordingly, petition is allowed.
7. The order dated 21.09.2015 passed by the learned Magistrate in P.C.R No.21457/2013 is set aside. Consequently, complaint is restored to file.
Complainant is directed to appear before the learned Magistrate without any further notice on 6.3.2019. In the event complainant fails to appear before the learned Magistrate to take either further date or to give his sworn statement on that day, this order shall become inoperative.
Sd/- JUDGE AN/-