IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF FEBRUARY, 2019 BEFORE THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.6059/2014 BETWEEN SMT. SUMA R., AGED ABOUT 42 YEARS, W/O LATE H.D RAJU, R/AT NO.755, 1ST MAIN, 1ST CROSS, 7TH BLOCK, BSK III STAGE, BANGALORE-560 085. ... PETITIONER (BY SRI J.CHALUVARAJ, ADV. FOR SRI K K VASANTH, ADV.) AND SRI S C CHANDRA SHEKHAR AGED ABOUT 54 YEARS, R/AT NO.50, ‘KRISHNAMMA CHALUVAIAH NILAYA’, 5TH A MAIN, OBALAPPA GARDEN, YADIYUR, BANGALOE-560 070. ... RESPONDENT (BY SRI C S NAGENDRA, ADV. - ABSENT) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 CR.P.C PRAYING TO SET ASIDE THE ORDER DATED:18.8.14 PASSED IN C.C.NO.16272/12 BY THE XXII ADDL.C.M.M., BANGALORE DISMISSING THE SAME FOR NON-
PROSECUTION AND RESTORE THE SAME ON FILE, SO AS TO ENABLE THE PETR. TO PRODUCE HER EVIDENCE.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Heard the learned counsel for the petitioner. Counsel for respondent is absent.
Petitioner is aggrieved by the order dated 18.8.2014 passed by the XXII Chief Metropolitan Magistrate, Bengaluru in CC NO.16272/12 whereby the learned Magistrate has dismissed the complaint filed by the petitioner herein under Section 138 of the Negotiable Instruments Act, 1881 (in short `the Act’) for non- prosecution.
2. Learned counsel for the petitioner submits that, on 18.8.2014, the complainant was present in Court, but, she being hard of hearing, could not present herself before Court as a result, the petition came to be dismissed for non-prosecution.
3. The learned counsel submits that, immediately on the next day, an application was moved by the petitioner for recall of the said order and restoration of the case but, the learned Magistrate has dismissed the application on the ground that the trial Court has no power to review the order.
4. The order sheet maintained by the Court below discloses that, complainant was present on 10.4.2014 and thereafter, on successive three dates, the complainant was absent. Hence, the complaint has been dismissed for non- prosecution. But, the order sheet dated 19.8.2014 reveals that, immediately on the next day, the complainant sought to recall the said order and in the said application it is stated that, she was present in the Court on 18.8.2014 and since she was hard of hearing, she could not appear before the Court when the case was called. These facts indicate that the complainant is interested in prosecution of the petition and is only on account of the above reason, the matter had gone unrepresented.
5. Having regard to the claim made by the petitioner who is a woman, in the interest of justice, an opportunity is required to be afforded to the petitioner to substantiate her case before the Court.
Accordingly, the petition is allowed. Impugned order dated 18.8.2014 passed by the XXII Addl.C.M.M.,Bangalore in CC No.16272/2012, is recalled. Complaint filed by the petitioner in CC No.16272/12 is restored to the file.
Since the matter is pending since 2012, the complainant as well as respondent/accused are directed to appear before the trial Court on 05.03.2019 without any further notice.
The petition is accordingly allowed.
Sk/- CT-HR Sd/- JUDGE