IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 31ST DAY OF JANUARY, 2019 BEFORE THE HON’BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY CRIMINAL APPEAL No.1003 OF 2016 BETWEEN:
Mr. Vinay Kumar B.S S/o. K.M.Siddappa, Aged about 38 years, R/at No.491, 2nd Main, Shastrinagar, Bengaluru-570 028. ...Appellant (By Sri. Jeevan K, Advocate) AND:
Smt. M.R.Indramma, Major, Middle School Teacher, Rani Saraladevi Vidya Samsthe, First Block, Jayanagar, Bengaluru-560 011.
And also at Smt. M.R.Indramma, R/o. No.360, 7th Main, 11th Cross, Second Block, Jayanagar, Bengaluru-560 011. ...Respondent (Respondent served) This Criminal Appeal is filed under Section 378(4) of Cr.P.C. praying to set aside the judgment dated:16.04.2016 passed by the XXII Addl. C.M.M., Bengaluru in C.C.No.7614/2014 –acquitting the respondent/accused for the offence punishable under Section 138 of N.I.Act.
This Appeal coming on for Admission, this day, the Court delivered the following:
JUDGMENT The appellant who was the complainant in the Court of the learned XXII Additional Chief Metropolitan Magistrate, Bengaluru (hereinafter for brevity referred to as “trial Court”) has filed this appeal challenging the order of the trial Court dated 16.04.2016, whereunder the trial Court has dismissed the complaint filed against the present respondent for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter for brevity referred to as “N.I. Act”), observing that there was no representation on the complainant’s side and steps have not been taken.
2. In this appeal, notice was served to the respondent. Despite the service of notice, the respondent has remained absent. Leave was granted to the appellant to prefer this appeal.
3. Though this matter was listed for Admission, considering the nature of the appeal and with the consent of the appellant, who is present, the matter is taken up for its final disposal.
4. A perusal of the impugned order go to show that while dismissing the complaint of the complainant before it, the trial Court has only observed that there was no representation from the complainant’s side, who has failed to take steps. It is further observed that by keeping the case long pending would serve no purpose, as such, the complaint was dismissed for default.
5. A perusal of the order sheet of the trial Court, certified copy of which is produced by the appellant, would go to show that on the previous dates of hearing, the matter was being followed by the complainant and the necessary process for issuance and re-issuance of non-bailable warrant against the accused therein was paid by them. On several dates of hearing, the matter went on for adjournment only awaiting of non-bailable warrant. It was only on 31.03.2016, due to the return of non-bailable warrant unexecuted, the matter was adjourned for taking fresh steps and was posted to 16.04.2016. On the very next date of hearing i.e., on 16.04.2016, the impugned order came to be passed. In the said scenario, I am of the view that the order under appeal dismissing the complaint for default deserves to be set aside and the complaint deserves to be restored on the file, however, on cost payable to the Bengaluru District Legal Services Committee, Bengaluru.
Accordingly, the appeal is allowed on a cost of Rs.3,000/- (Rupees Three Thousand only) payable to the Bengaluru District Legal Services Committee, Bengaluru within ten days from today and to file compliance memo along with receipt in the Court below to that effect.
Subject to the payment of cost, the order dated 16.04.2016 passed by the XXII Addl. Chief Metropolitan Magistrate, Bengaluru, in C.C.No.7614/2014, is set aside and the said C.C.No.7614/2014 is restored on the file of the trial Court.
Sd/- JUDGE BMC