IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR.JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.8095/2014 BETWEEN:
M/S VYBHAV THEATRE REPRESENTED BY M.VENKATESH AGED ABOUT 67 YEARS S/O LATE MUNIYAPPA.
REPRESENTED BY G.P.A HOLDER V VENU AGED ABOUT 44 YEARS BOTH ARE RESIDING AT No.410, 12TH CROSS SADASHIVANAGAR BANGALORE – 560 080.
(BY SRI PRAVEEN C, ADVOCATE) AND:
ABHILASH ASHOK SHERKANE S/O ASHOK MADHAV SHERKANE No.1/1, 60 FEET ROAD BOOPASANDRA, 4TH CROSS 5TH MAIN, SANJAYANAGARA …PETITIONER BANGALORE – 560 094. ... RESPONDENT (BY SRI K N PRAVEEN KUMAR, ADVOCATE) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C PRAYING TO QUASH THE ORDER DATED 3.12.2014 IN C.C.No.11764/2012 BY THE LEARNED XII ACMM, BANGALORE AND DIRECT THE HON’BLE COURT TO PROCEED IN ACCORDANCE WITH LAW.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Petitioner is aggrieved by the order dated 03-12-2014 passed by the XII Additional Chief Metropolitan Magistrate, Bangalore in C.C.NO.11764/ 2012, whereby the application filed by the petitioner/complainant under Section 309 of Cr.P.C., was dismissed and complaint was also dismissed for non- prosecution.
2. Heard learned counsel for petitioner and learned counsel for respondent and perused the records.
3. The petitioner herein filed a complaint under Section 138 of Negotiable Instruments Act. The learned Magistrate upon taking cognizance of the offence issued summons to the respondent/accused. The accused appeared before the Court on 26.4.2014. Thereafter, complainant remained absent on four consecutive dates. On 08-08-2014 application filed by the complainant seeking permission to prosecute his complaint through his General Power of Attorney was allowed. On 22.11.2014 his evidence was adjourned subject to payment of cost of Rs.500/- to 03-12-2014. But on 03-12-2014, once again complainant sought time to adduce evidence on the ground that the original documents were kept in the locker and the key of the locker was lost.
4. The above facts indicate that the petitioner has been prolonging the matter without justifiable reason. If the original documents were kept in locker, the petitioner ought to have collected them well in advance and not on the 11th hour when the matter was posted for his evidence. In that view of the matter, learned Magistrate was justified in dismissing the application and consequently dismissing the complaint.
5. However, having regard to the contentions urged in the petition and having regard to the fact that the original documents in proof of the claim made by the petitioner were not produced before the court, in the larger interest of justice to afford full opportunity to the petitioner/complainant to substantiate his case, the petition is allowed.
The impugned order dated 03-12-2014 is set aside subject to payment of cost of Rs.3,000/-.
The petitioner shall deposit the said cost before the trial Court within 15 days from the date of this order and on deposit of the said amount, the trial Court shall restore CC No.11764/2012 to its file and shall fix a date for recording the evidence of the complainant on which date, the complainant shall adduce his evidence without seeking any further adjournment.
If the petitioner fails to deposit the said amount and fails to adduce evidence on the date fixed by the trial Court, this order shall become non operative.
The cost of Rs.3,000/- on deposit shall be made over to the respondent on the date of cross examination of PW1.
Petition stands allowed in terms of the above.
Sd/-
JUDGE tsn*