IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF MARCH, 2019 BEFORE THE HON’BLE MR. JUSTICE ARAVIND KUMAR CRIMINAL PETITION NO.4399/2017 BETWEEN:
M/S SRI. SABARI MILLS REPRESENTED BY ITS PARTNER MR. P. SIVAKUMAR S/O PONNU SWAMY AGED ABOUT 35 YEARS NO.146, UNION MILL ROAD THIRUPUR - 641 601.
(BY SRI. P.N. HEGDE., ADVOCATE) AND:
GOVERDHAN DAS RATHI PROPRIETOR OF BHAGAVATHI TRADING S/O RAMKRISHNA RATHI AGED ABOUT 55 YEARS NO.8, 2ND MAIN ROAD HARIRAM AILDAS LAYOUT GOVENDARAJNAGAR VIJAYANAGAR BANGALORE - 560 040 (BY SRI. S. SHAKER SHETTY., ADVOCATE) ... PETITIONER ... RESPONDENT THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 CR.P.C PRAYING TO SET ASIDE THE ORDER DATED:08.09.2016 PASSED BY THE XLII ADDL.C.M.M., BANGALORE IN C.C.NO.33932/2014 AND RESTORE THE FILE TO ITS ORIGINAL NUMBER IN ORDER TO PASS THE APPROPRIATE ORDER ON THE JOINT MEMO DATED:18.08.2015 FILED BY THE RESPECTIVE PARTIES ON 18.08.2015.
THIS PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Petitioner has sought for order dated 08.09.2016 passed in C.C.No.33932/2014 being set aside whereunder complaint filed by petitioner under Section 200 of Cr.P.C. alleging that respondent/ accused has committed an offence punishable under Section 138 of Negotiable Instruments Act, 1881, has been dismissed for non-prosecution.
2. It is the contention of Smt.Arasi, learned counsel appearing on behalf of Sri.P.N.Hegde for petitioner that learned trial Judge has committed an error in dismissing the complaint for non-prosecution without examining the fact that there is a joint memo filed by the parties on 18.08.2015 reporting settlement and in fact parties as well as their learned Advocates had also signed the order sheet and as undertaken given by the accused to repay the debt of `34.40 lakhs in four installments and same having not been paid and relying on the said joint memo filed before trial Court produced along with present petition, it is contended by her that on verification petitioner was made known that learned Magistrate instead of passing the orders thereon, has proceeded to fix the next date of hearing as 26.08.2015 and on account of absence of accused on subsequent dates, non bailable warrant had been issued cancelling the bail and forfeiting the surety amount. All these subsequent events have been taken note of by the learned trial Judge and has thereby dismissed the complaint of default. Hence, he prays for allowing the petition.
3. Per contra, Sri.S.Shaker Shetty, learned counsel appearing for respondent/accused would support the order passed by trial Court and contends that this Court while examining the prayer for setting aside the order only on the basis of entries found in the order sheet, it cannot travel beyond the same. Order sheet in question would disclose that on 18.08.2015 there is no recording of such joint memo filed and as such question of recalling the order of dismissal of complaint does not arise and as such he prays for rejection of the petition.
4. Having heard the learned Advocates appearing for parties and on perusal of certified copy of order sheet produced along with this petition, it would disclose that on 18.08.2015 an order came to be passed by the learned Magistrate and it reads as under:
“Call on by 26/08/2015.
Sd/- 18/08”
5. Subsequently, matter has been adjourned to 26.08.2015, 04.09.2015, 21.09.2015 and 03.10.2015.
In the order sheet dated 03.10.2015 it contains the signature of learned Advocates appearing for complainant and accused and both parties have also affixed their signatures to the order sheet produced along with the petition, which is the certified copy of the original order sheet. Hence, there is no good ground to disbelieve the contents of entries made in the order sheet. That apart, joint memo which has been filed by the learned counsel along with present petition would disclose that parties had in fact filed said joint memo before Court. However, same is seriously disputed by Sri.S.Shaker Shetty, learned counsel appearing for respondent. As to whether accused had appeared on 18.08.2015 and affixed the signature in the order sheet? and, whether joint memo was filed before the learned trial Judge, would not be in the realm of consideration of this Court, inasmuch as, order sheet as well as certified copy of the joint memo would belie the claim of respondent/accused.
6. Be that as it may. Very same order sheet above referred to would disclose subsequently accused has appeared and obtained bail and non bailable warrant issued against him has been recalled vide order dated 09.06.2016. It is thereafter, matter has been listed on several occasions as noticed hereinabove already and on all the dates of hearing complainant has remained absent. At this stage, it would be too heard to disbelieve the learned counsel appearing for petitioner whose contention is that joint memo had already been filed and petitioner as well learned counsel for the petitioner was awaiting further orders from the trial Court. Her contention stands fortified by the fact that learned Advocates as well as parties having affixed their signatures to the order sheet dated 03.10.2015 and certified copy of the joint memo filed would also disclose that matter had been settled between parties. As to whether there was actual settlement or not, is a matter which requires to be adjudicated in the proceedings before trial Court, if they desire so. However, under the guise of matter being settled or proposed to be settled, the valuable right of the petitioner cannot be scuttled or stifled on the ground of non appearance of complainant. Ofcourse there is an error, mistake on the part of complainant in not verifying either ‘A’ Diary or ‘order sheet’ of the trial Court subsequent to 18.08.2015, on account of which respondent had to appear before this Court and contest these proceedings and as such order of dismissal of complaint for default passed by the learned trail Judge requires to be set aside conditionally and also in the interest of justice.
Hence, I proceed to pass the following:
ORDER (i) Criminal petition is allowed.
(ii) Order dated 08.09.2016 is hereby set aside and proceedings in C.C.No.33932/2014 is restored to the file of XLII Addl. Chief Metropolitan Magistrate, Bangalore, for being disposed of on merits and in accordance with law subject to petitioner paying cost of `5,000/- to the respondent.
(iii) Both parties are directed to appear before trial court on 22.04.2019 without waiting for further notice and for continuing the proceedings, payment of costs by the petitioner/complainant to respondent/accused shall be condition precedent as otherwise order of dismissal would stand revived.
SD/-
JUDGE DR