Vijay Kumar C Vs Dhanalakshmi H

The appellant has preferred this appeal against the order passed by the IV Additional I Civil Judge and JMFC, Mysuru in C.C.No.1330/2014 dated 22.03.2019.

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The appellant has filed a complaint under Section 138 of NI Act. After taking cognizance, case was registered in C.C.No.1330/2014 and summons was issued to the accused. In response to summons, accused appeared before the Court and enlarged on bail. Plea was recorded, accused pleaded not guilty and claimed to be tried. The complainant has adduced his evidence as PW1 on 26.10.2016. Then case was posted for cross-examination of PW1 and on 22.03.2017, PW1 was partly cross-examined and the case was posted for further crossexamination on 26.04.2017. On 26.04.2017, P.O. was on

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NC: 2026:KHC:4995 CRL.A No. 637 of 2020

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HC-KAR

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training and the case was adjourned to 07.07.2017. On 07.07.2017, PW1 was present. But at the request of learned counsel for accused, further cross-examination of PW1 was deferred at the cost of Rs.100/- and then case was posted to 16.08.2017. On that day also PW1 was present and accused remained absent. Hence, NBW was issued and case was posted to 13.10.2017. That on 13.10.2017, both PW1 and accused were present and NBW was recalled with penalty of Rs.100/-. Then case was posted to 15.11.2017. On that day, accused was absent and PW1 was present and case was posted to 25.11.2017. On 25.11.2017, the case was referred to Lok Adalat. The matter was not settled before the Lok Adalat. Thereafter case was being adjourned from time to time. Then accused remained absent and NBW was issued against the accused. And thereafter case was being adjourned from time to time till 22.03.2019. On 22.03.2019, the trial Court has passed the following order:

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"Case is called out. Again called out. No representation from the complainant or from his counsel. This case is posted to take steps against the accused. The complainant or his counsel is not taking any steps against accused. This shows that the complainant or his

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NC: 2026:KHC:4995 CRL.A No. 637 of 2020

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HC-KAR

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counsel is not interested to proceed with the case. Hence, the complaint is hereby dismissed for non prosecution."

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A perusal of the order sheet of the trial Court reveals that many times accused remained absent and NBW was issued against the accused. Thereafter he was released on bail. The office has not entered anything in the order sheet as to why NBW was not issued to the accused.

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Hence, considering the factual circumstances of this case, it is just and proper to provide one more opportunity to the complainant to take steps against the accused. Accordingly, I proceed to pass the following:

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ORDER

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i. The appeal is allowed .

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ii. The impugned order passed by the IV Additional I Civil Judge and JMFC, Mysuru in C.C.No.1330/2014 dated 22.03.2019 is set aside. C.C.No.1330/2014 shall be restored.

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iii. The appellant/complainant is directed to appear before the trial Court without seeking

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