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2020 DIGILAW 223 (KAR)

Raghavendra R. v. Khaja Sab

2020-01-24

MOHAMMAD NAWAZ

body2020
JUDGMENT : Heard the learned counsel appearing for the appellant and perused the material on record. The case of the appellant/complainant is that the accused/respondent borrowed a sum of Rs.2,50,000/and issued a cheque for the said sum, which came to be dishonored when it was presented to the bank. Hence, a complaint was filed before the trial Court against the accused for the offence punishable under Section 138 of Negotiable Instruments Act, 1881. The said complaint was dismissed for default by the learned Magistrate on 13.11.2019, aggrieved by which the present appeal is preferred. 2. It is seen that the complaint was filed on 24.12.2018. On 17.01.2019, case was registered and summons was issued to the accused. Initially, the said summons was returned as “No such person in the address”. Thereafter, summons was reissued. It was served on the accused and the case was called on 09.08.2019, accused remained absent. Hence, complainant was directed to take steps. However, since the steps were not taken the complaint came to be dismissed for default. 3. The learned counsel for the appellant would submit that since the accused was absent on the intimated date, the trial Court issued Non Bailable Warrant and directed the appellant to take steps and posted the matter on 13.11.2019. On the said date, due to health issues, the advocate on record could not appear before the Court and therefore, steps could not be taken. He submits that the same is unintentional and seeks indulgence of this Court to give him one more opportunity to the complainant to prosecute his complaint. 4. It is seen that the complaint is dismissed for default i.e., for not taking steps. The learned counsel has submitted that on account of health issues, the advocate appearing for the complainant could not appear before the trial Court. It is also submitted that if the complaint is not restored to file, the same would cause great hardship and irreparable loss to the complainant. The learned counsel further submits he will take necessary steps and hereafter he will diligently prosecute the complaint. 5. It is also submitted that if the complaint is not restored to file, the same would cause great hardship and irreparable loss to the complainant. The learned counsel further submits he will take necessary steps and hereafter he will diligently prosecute the complaint. 5. Considering the facts and circumstances of the case and the submission made by learned counsel, to meet the ends of justice, I deem it appropriate to allow the appeal by imposing costs of Rs.500/(Rupees Five Hundred Only) on the complainant, which shall be deposited by him with the State Legal Services Authority within a period of two weeks from today and a copy of the receipt shall be filed before the trial Court. The appeal is allowed. The impugned order dated 13.11.2019 passed in C.C.No.1690/2019 on the file of the Court of XII A.C.M.M at Bengaluru is hereby set aside. The complaint shall be restored to its file and the trial Court shall proceed further in accordance with law.