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Judgment
Shivashankar Amarannavar, J
This appeal is filed by the complainant praying to set aside the order dated 14.09.2018 passed in C.C. No. 16468/2016 by the XXIV ASCJ and XXII ACMM, Bengaluru and for restoration of C.C. No. 16468/2016 to its original number.
Though the matter is listed for admission, with the consent of the learned counsel appearing for the parties, it is taken up for hearing.
Heard learned counsel for the appellant and learned counsel for the respondent.
The appellant – complainant initiated proceedings against the respondent - accused for offence under Section 138 of Negotiable Instruments Act (hereinafter for the sake of brevity referred to as the `N.I. Act’) and it was pending in C.C. No. 16468/2016 on the file of XXIV ASCJ and XXII ACMM, Bengaluru. Said case came to be listed for leading evidence on complainant’s side on 14.09.2018 and on that day, noting the absence of complainant, learned Magistrate has dismissed the complaint for default. Said order has been challenged by the complainant in this appeal.
Learned counsel for appellant would contend that the appellant is a Private Limited Company and as there was change in the representative of the appellant – complainant, the Company’s counsel filed an application on 29.08.2018 for substituting the representative of the appellant – complainant and it came to be allowed by order dated 04.09.2018. Thereafter, the case came to be listed for evidence on 10.09.2018 and the matter came to be adjourned to 14.09.2018. He submits that on 14.09.2018, as complainant’s representative appeared in another case, i.e., in C.C. No. 50405/2015 on the file of XIV ACMM, Mayo Hall unit, Bengaluru, he could not appear in C.C. No. 16468/2016 and noting his absence, the complaint came to be dismissed for default. Absence of the complainant’s representative on 14.09.2018 is not malafide, but it is bonafide. With this he prayed for allowing the appeal and restoring the case.
Learned counsel for respondent - accused would contend that the complainant’s representative was absent on 04.09.2018 and on 10.09.2018 and noting the absence of representative of appellant – company, learned Magistrate has dismissed the complaint for default on 14.09.2018. If the complainant’s representative was required to appear in another case, his counsel ought to have made representation in the matter. There is gross negligence on the part of appellant – complainant. With this he prayed for dismissal of the appeal.
Having heard learned counsel for the parties, this Court has perused the impugned order and other material placed on record.
Proceedings initiated by the appellant – complainant against the respondent - accused for offence under Section 138 of the N.I. Act in C.C. No. 16468/2016 was listed for evidence on 10.09.2018 and on that day, the matter was ordered to be listed on 14.09.2018. Noting the absence of complainant, learned Magistrate on 14.09.2018 has passed the impugned order dismissing the complaint for default. The documents produced indicate that the complainant’s representative appeared in another matter in C.C. No. 50405/2015 on the file of XIV ACMM, Mayo Hall unit, Bengaluru. Therefore, absence of complainant’s representative on 14.09.2018 in C.C. No. 16468/2016 is bonafide and not malafide. Therefore, the impugned order dismissing the complaint for default requires to be set aside.
In the result, the following;
ORDER
i. The appeal is allowed.
ii. The impugned order dated 14.09.2018 passed in C.C. No. 16468/2016 by the XXIV ASCJ and XXII ACMM, Bengaluru is set aside.
iii. Criminal case in C.C. No. 16468/2016 is restored.
iv. The appellant and respondent are directed to appear before the XXIV ASCJ and XXII ACMM, Bengaluru on 18.02.2024 without awaiting for Court notice.