At, High Court of Karnataka
By, THE HONOURABLE MR. JUSTICE R.B. BUDIHAL
For the Appellant: K.V. Satish, Advocate. For the Respondent: Served.
1. This appeal is preferred by the appellant/complainant being aggrieved by the order dated 18.03.2014 passed by the learned XIV Addl. Chief Metropolitan Magistrate, Bengaluru, in C.C. No. 50006/2013 dismissing the complaint of the appellant herein that the appellant was absent and steps were not taken for issuing summons to the accused. The appellant/complainant challenged the order of dismissal and also the legality and correctness of the said order on the grounds as mentioned at paragraph No.8 of the appeal memorandum, so also, at ground Nos.10 to 13.
2. Heard the arguments of the learned counsel appearing for the appellant/complainant. Respondent though served remained absent. No representation.
3. I have perused the grounds urged in the appeal memorandum, certified copy of the order sheet produced by the appellant, more particularly, the order dated 18.03.2014. Looking to the said order, it is mentioned by the trial Court as under :
'The complainant absent.
Later on called out twice.
Complainant and counsel absent. No representation is made.
Perused the order sheet, it appears that in spite of giving sufficient opportunity complainant/counsel failed to take steps, as such I find that there are no reasons to adjourn the case.
Hence, the above numbered case stands dismissed as steps not taken."
4. Perusing the case of the appellant/complainant, complainant filed the private complaint under section 200 of Cr.P.C., 1973 as against the respondent herein for the alleged offence under section 138 and 142 of N.I. Act. It is stated by the complainant that in the year 2011 the complainant had supplied spares and raised invoices, which is mentioned in the complaint, and subsequently after delivery of goods, in partial discharge of the pending invoice amounts, and also the difference in the sale tax for non-furnishing of 'C' Form, the accused issued three cheques aggregating to Rs. 44,399/-, the cheque numbers with the amount and the details are furnished in the appeal memorandum.
5. It is also the case that the cheques were presented by the complainant with its bankers, same were dishonoured with an endorsement "refer to drawer", then the private complaint came to be filed. In the appeal memorandum it is stated by the appellant that on 17.03.2017, which was date noted by its counsel, only C.C. No. 50007/2013 was listed and the appellant being under the impression that other case C.C. No. 50006/2013 is not listed by the office of the lower Court, the Advocate for the Appellant enquired with the Registry and since the case file could not be located, he was asked to come back later. The said C.C. No. 50006/2013 was however listed on 18.03.2017 and on that date, noting the absence of the appellant/complainant and its counsel, the said case was dismissed as steps not taken for issue of summons to the accused. In fact the process and RPAD covers were already submitted for issue of summons by RPAD. However, in view of the fact that date of hearing was mentioned in the process memo as 17.03.2014, the office of the lower Court had not put up the same. Therefore, the appellant herein submitted that the absence of the complainant as well as the counsel is neither intentional nor deliberate and it is because of the reasons as mentioned in the appeal memorandum.
6. Therefore, looking to the reasons mentioned in the appeal memorandum, I am of the opinion that even if the appeal is allowed and the order of the trial Court is set-aside restoring the complaint to its original file, it will not cause any injury or hardship to the other side, as the respondent will also be having an opportunity to appear in the matter and to contest the same on merits, but if the appeal is not allowed and the order of the trial Court is not s
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et-aside the appellant/complainant will be put into hardship and injury. Hence, appeal is allowed. The order dated 18.03.2014 passed in C.C. No. 50006/2013 by the XIV Addl. Chief Metropolitan Magistrate, Bengaluru, is hereby set-aside and the complaint filed by the appellant/complainant is restored to its original file and number. The complainant has to take further steps in the matter before the concerned Court.