IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7TH DAY OF OCTOBER, 2017 BEFORE THE HON’BLE MR. JUSTICE ARAVIND KUMAR CRIMINAL APPEAL NO. 1392/2015 BETWEEN:
Smt. Suvarna W/o Late V. Govindaswamy Aged about 40 years, Residing at No.15/1 5th Main Road, Agraharadasarahalli, Magadi Road, Bengaluru – 560 079 ... Appellant (By Sri. Bhaskarbabu H.J., Advocate) AND:
Smt. T.C. Sumathi, W/o Late G. Prashanth, Aged about 36 years, Residing at No.395, 5th Main, 2nd Block, BSK 1st Stage, Bengaluru – 560 050 … Respondent (By Sri. M.N. Patel for Sri. K. Sridhara, Advocates) This Criminal Appeal is filed under Section 378(4) of Cr. P.C, praying to set aside the order dated 19.03.2014 passed by the XXII A.C.M.M., Bengaluru in C.C.No.28281/2009 – acquitting the respondent/ accused for the offence punishable under Section 138 of N.I. Act.
This Criminal Appeal is coming on for orders this day, the Court delivered the following:
JUDGMENT This is an appeal filed by the complainant being aggrieved by the order dated 19.03.2014 passed by XXII Additional Chief Metropolitan Magistrate, Bengaluru in C.C.No.28281/2009 whereunder complaint came to be dismissed for non-prosecution. Order passed by the trial Court reads as under:
“Complainant absent. Since the case is pending from the year 2009. The complainant did not turn up. The parties might have settled this case. Hence, Complainant not interested to prosecute the case.
Hence complaint is dismissed for Non-prosecution and for default.”
2. I have heard the arguments of Sri.Bhaskarbabu.H.J., learned counsel appearing for the appellant and Sri.M.N.Patil, learned counsel appearing on behalf of Sri K.Sridhara for respondent. Perused the records.
3. It is the contention of Sri.Bhaskarbabu.H.J., learned counsel appearing for the appellant that trial court erred in not considering the fact that matter had been transferred from one court to another court and it was at the stage of taking steps for appearance of the respondent and there was no court notice issued for the parties to appear on the said date and as such, absence of complainant on 19.03.2014 was bonafide. Hence, he prays for the order passed by the learned Magistrate dismissing the complaint being set aside and complaint being restored to file.
4. Per contra, Sri.M.N.Patil, learned counsel appearing for respondent would support the order passed by the trial court and would contend that matter was pending from the year 2009 and appellant - complainant has been protracting the proceedings before trial court. He would submit that matter was pending from the year 2009 and appellant – complainant has been dragging on the proceedings and at this length of time there is no need or necessity to revive the matter and or being heard and disposed of on merits. Hence, he prays for dismissal of the appeal.
5. Having heard the learned Advocates appearing for the parties and on perusal of the records, it would disclose that appellant filed a complaint against the respondent under Section 200 of Cr.P.C alleging that she had committed offence punishable under Section 138 of N.I. Act. Notice came to be ordered by the trial court and said proceedings was pending before the XVI Additional Chief Metropolitan Magistrate at Bengaluru. It was transferred to the Court XXII Additional Chief Metropolitan Magistrate at Bengaluru by notification dated 22.01.2014. Hence, matter came to be called before XXII ACMM on 22.1.2014 and adjourned to 19.3.2014. The order sheet of said court would disclose that learned Magistrate had directed the Registry to notify on the Court notice board about transfer of the case. Though in the order sheet an entry has been purportedly made by the Registry that same had been notified on the notice board, it is the specific contention and stand of the appellant that complainant has no knowledge of such transfer. Hence, in the absence of any positive material being available on record to establish that appellant – complainant had been notified and was aware of the proceedings pending before the Transferee court or in other words, appellant had been intimated of said transfer, it cannot be gainsaid by the respondent that appellant had the knowledge of such transfer and yet he did not appear. In that view of the matter, this Court is of the considered opinion that dismissal of the appeal for non prosecution cannot be sustained.
6. Hence, I proceed to pass the following:
JUDGMENT (1) Criminal appeal is hereby allowed.
(2) Order dated 19.3.2014 passed in C.C.No.28281/2009 by XXII Additional Chief Metropolitan Magistrate, Bengaluru (PCR No.12640/2009) is hereby set aside and complaint is restored to the file of the jurisdictional Magistrate court for being disposed of on merits and in accordance with law.
(3) Both parties are directed to appear before the jurisdictional court on 31.10.2017 without waiting for any further notice from said court.
SD/- JUDGE RS/*