Smt Pooja Narasimha Hegde Vs Yajaman Developers

YAJAMAN DEVELOPERS BUILDERS AND CONSTRUCTIONS A PROPERTY CONCERN HAVING ITS OFFICE AT NO.4813 B.H.ROAD, JYOTHI NAGAR NELAMANGALA TOWN BANGALORE RURAL DISTRICT NELAMANGALA-562 123 REP BY ITS PROPRIETOR SRI. PRASHANTH B.R

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SRI. PRASHANTH B.R S/O RAMANJINEYULU AGED ABOUT 32 YEARS R/AT NO.1, RAMESH ROAD REDDY LAYOUT T.DASARAHALLI BENGALURU-560 057 …RESPONDENTS (R1 AND R2 ARE SERVED AND UNREPRESENTED)

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2 - NC: 2025:KHC:7815 CRL.A No. 158 of 2025

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THIS CRL.A IS FILED U/S 378(4) OF CR.PC PRAYING TO SET ASIDE OF DISMISSAL OF C.C.NO.4357/2023 DATED 23.12.2024 PASSED BY THE XVI A.C.J.M BENGALURU FOR THE OFFENCE P/U/S 138 OF N.I ACT.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR

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ORAL JUDGMENT

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This appeal is filed by the complainant praying to set

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aside the order dated 23.12.2024 passed in C.C.No.4357/2023 by the XVI Additional Chief Metropolitan Magistrate, Bengaluru, wherein the complaint has been dismissed for non-prosecution.

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Heard learned counsel for the appellant. Inspite of service of notice, the respondent –accused remained absent.

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The appellant –complainant initiated proceedings against the respondent –accused for offence punishable under Section 138 of the N.I Act and it is pending in C.C. No.4357/2023 on the file of the XVI Additional Chief Metropolitan Magistrate, Bengaluru. The said case came to be posted on 03.10.2024 for recording

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3 - NC: 2025:KHC:7815 CRL.A No. 158 of 2025

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of the plea of the accused. The accused on that day was present in the morning and he was absent in the afternoon. Therefore, the learned Magistrate has issued NBW against the respondent –accused and posted on 29.10.2024. On 29.10.2024 there was order of re-issue of NBW to accused, if process fee is paid and it was ordered to be listed on 23.12.2024. On 23.12.2024, the learned Magistrate noting the absence of the complainant and his counsel, dismissed the complaint for non-prosecution. The said order has been challenged by the complainant in this appeal.

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Learned counsel for the appellant would

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contend that he has paid process fee in the office and it was not put up with file. He further submits that on the date of the impugned order the counsel for the appellant held up in the another Court. He submits that absence of the complainant and his counsel on the date of the impugned order was for bonafide reasons. With this he prays to allow of the appeal.

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4 - NC: 2025:KHC:7815 CRL.A No. 158 of 2025

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On the date of recording plea i.e. 23.10.2024,

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the respondent is present in the morning and he remained absent in the afternoon. Therefore, the learned Magistrate has ordered to issue NWB to the accused. On 29.10.2024 the learned Magistrate ordered for re-issue of NBW to accused, if process fee is paid and ordered to list on 23.10.2024. On 23.12.2024 it was not mentioned in the order sheet that process fee has not been paid. On that day noting absence of the complainant and his counsel, the learned Magistrate has dismissed the complaint for non-prosecution.

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There are two cheques involved in the case one for Rs.2,80,000/- and another one for Rs.2,70,000/-. Considering the involvement of said two cheques for huge amount, learned Magistrate ought to have given another opportunity to the complainant.

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The absence of the complainant and his counsel on the date of the impugned order is for bonafide reasons. The appellant –complainant has made out case for setting aside the impugned order and restoration of criminal case.

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