IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26th DAY OF MARCH, 2019 BEFORE THE HON’BLE MR.JUSTICE ARAVIND KUMAR CRIMINAL PETITION NO.8391/2018 BETWEEN:
SRI.S.NANJUNDAIAH S/O. LATE G.SHIVANANJAPPA AGED ABOUT 66 YEARS, RESIDING AT NO.5, 9TH K MAIN ROAD, RPC LAYOUT, VIJAYNAGAR, BANGALORE-560 040 (BY SRI.NAGARAJA S, ADVOCATE) AND:
SRI. JAGADISH L S/O. LINGAIAH AGED ABOUT 45 YEARS, R/AT NO.25, H.GOLLAHALLI, C.V.PALYA, VIDYAPEETHA POST, KENGERI HOBLI, BANGALORE DISTRICT – 560 060 ... PETITIONER ... RESPONDENT THIS PETITION IS FILED UNDER SECTION 482 CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT AND ORDER DATED 22.09.2018 IN CRL.RP NO.541/2018 PASSED BY THE HON’BLE LX ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BANGALORE (CCH-61) AND THE ORDER DATED 13.06.2018 IN C.C.NO.25781/2016, PASSED BY THE HON’BLE XXIII ADDITIONAL CHIEF METROPOLITAN MAGISTRATE COURT, BANGALORE AND RESTORE THE PROCEEDINGS IN C.C.NO.25781/2014.
THIS PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Notice to respondent stands dispensed with since no order adverse to the interest of respondent-accused is being passed and also taking into consideration that respondent-accused is yet to appear before the Courts below.
2. This petition is filed for setting aside the order dated 22.09.2018 passed in Crl.R.P.No.541/2018 by LX Addl. City Civil and Sessions Judge, Bengaluru and order dated 13.06.2018 passed in C.C.No.25781/2016 by XXIII Addl. Chief Metropolitan Magistrate, Bangalore, whereunder complaints filed by petitioner came to be dismissed by trail Court and affirmed by revisional Court, with a further prayer to restore said proceedings to the file of learned Magistrate for being proceeded in accordance with law.
3. Petitioner herein filed a complaint under Section 200 of Cr.P.C. alleging accused has committed an offence punishable under Section 138 of Negotiable Instruments Act, 1881. Learned trial Judge by impugned order dated 13.06.2018 dismissed the complaint for default after noticing that complainant and his counsel have continuously remained absent and no steps had been taken to pay the process fee for issuance of non bailable warrant, which had been ordered against respondent-accused. In fact, on the day impugned order came to be passed i.e., on 13.06.2018, on account of non appearance of complainant and his counsel matter was passed over and again at 5.00 p.m. when matter had been called there was no representation and as such learned trial Judge left with no other option had dismissed the complaint.
4. Being aggrieved by the same, revision petition was filed in Crl.R.P.No.541/2018 and revisional Court having noticed the factual matrix at paragraphs 14 and 15 of its order dated 22.09.2018 dismissed the petition.
“14. However, on careful perusal of the certified copies of lower court records, especially the order sheet, it is observed that, since from the date of registering CC, the complainant has remained absent and he has not taken steps, even though several adjournments were granted. Though the learned trial court has provided a sufficient opportunity, he has not appeared before the trial court and proceeded with the case and it is observed that, the learned trial court has totally a twenty three adjournments were granted, in spite of it, the complainant has not taken any steps. On 13.6.2018 the case was called at 11.00am and the petitioner was absent and thereafter again called at 3.00pm, the petitioner was not present and again called at 5.00pm the petitioner was absent and hence, the learned trial court has dismissed the complaint as non prosecution.
15. Another important aspect to be noted is the conduct of the petitioner/complainant before the court below shows that, even after registering the case, even a single day he has not appeared before the court and he did not take proper steps. The very conduct of the complainant/petitioner, reveals that, he is not diligent in pursuing the matter. Hence, I am of the opinion that, the lower court has rightly observed the conduct of the complainant and it has dismissed the complaint for non prosecution. I am of the opinion that, the order of the lower court does not suffer from any irregularity and it does not call for interference of this court. Therefore, I answer the point in the “NEGATIVE”.”
5. Above findings recorded by the Courts below would clearly indicate that more than 23 adjournments have been granted, yet complainant and his counsel have failed to appear before the Court below and as such no fault can be laid at the doors of trial Court. However, in the interest of justice one final opportunity deserves to be granted to the petitioner conditionally and as such impugned orders are liable to be set-aside.
Hence, I proceed to pass the following:
ORDER (i) Criminal petition is allowed.
(ii) Order dated 22.09.2018 passed in Crl.R.P.No.541/2018 by LX Addl. City Civil and Sessions Judge, Bengaluru and order dated 13.06.2018 passed in C.C.No.25781/2016 by XXIII Addl.
Chief Metropolitan Magistrate, Bangalore, is set aside.
(iii) C.C.No.25781/2016 is restored to the file of XXIII Addl. Chief Metropolitan Magistrate, Bangalore, for being proceeded from the stage it came to be dismissed, subject to petitioner depositing a sum of `10,000/- as costs payable to Karnataka State Legal Services Authority.
(iv) Petitioner-complainant shall appear before trial Court on 22.04.2019 without waiting for further notice.
SD/- JUDGE DR