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2018 DIGILAW 615 (KAR)

Lohith . M, S/o. Marimadaiah v. Basavaraju

2018-05-29

K.N.PHANEENDRA

body2018
ORDER : 1. Notice to be issued to the respondent is dispensed with as the respondent is the accused before the Trial Court, has not made his appearance before the Trial Court. 2. The present petition is filed calling in question the order passed by the learned XXIII Addl. C.M.M, Bengaluru, in dismissing the complaint for non-prosecution on 04.01.2016 and also dismissing the application for recalling of the said order filed by the complainant vide orders dated 12.01.2016. 3. On careful perusal of the order-sheet of the Trial Court, it reveals that, on various occasions, the complainant has promptly taken steps to secure the presence of the accused by furnishing the process to the Court and accordingly, Court has issued summons and non-bailable warrants to secure the presence of the accused. Particularly, on 16.01.2015, NBW was issued and process was paid, but the Court recorded its finding on 22.04.2015 that the NBW issued against the accused was not returned. However, it again posted the case for steps. As the complainant has not paid the P.F, in spite of granting time on 07.10.2015, the case came to be dismissed for non-prosecution on 04.01.2016. 4. There is no finding by the Trial Court as to what happened to the NBW issued against the accused on 22.04.2015. Perhaps complainant might have felt that the accused could be secured on the basis of the NBW already issued by the Court. Perhaps that may be the reason he was misled himself in not paying the process fee to the Court. This would not have been taken seriously by the Trial Court and lenient view would have been taken by granting some more time and asking the Police to return the NBW already issued against the accused. 5. Under the above said circumstances, I find sufficient force in the arguments of the learned counsel for the accused. Hence, the order deserves to be set aside. 6. Under the above said circumstances, the following order is passed: ORDER The petition is allowed. The Order dated 04.01.2016 passed by the learned XXIII Addl. C.M.M, Bengaluru in C.C.No.14840/2013 is hereby set aside. The said criminal case stands restored to the file of the XXIII Addl. Hence, the order deserves to be set aside. 6. Under the above said circumstances, the following order is passed: ORDER The petition is allowed. The Order dated 04.01.2016 passed by the learned XXIII Addl. C.M.M, Bengaluru in C.C.No.14840/2013 is hereby set aside. The said criminal case stands restored to the file of the XXIII Addl. C.M.M, Bengaluru, with a direction to provide an opportunity to the petitioner to take steps against the accused and the Court also examined as to what happened to the NBW already issued by the Court to secure the presence of the accused, which was not returned and thereafter, pass appropriate order, in accordance with law.