Manjula vs B T Rajamma

K. Natarajan, J

This appeal is filed by the appellant under section 378 (4) of Cr.P.C for setting aside the order of dismissal of the complaint dated 27.05.2015 in C.C.No.14473/2011 on the file of XVI Additional Chief Metropolitan Magistrate, Bengaluru City.

Heard the arguments of learned counsel for the appellant and learned counsel for the respondents.

The case of the appellant is that the appellant filed the complaint under Section 200 Cr.P.C against the respondent-accused for the offences punishable under Section 138 of Negotiable Instruments Act, 1881 (NI Act) and after taking cognizance the accused was secured by the trial Court and NBW was issued and it was recalled by the respondent-accused. Subsequently, on 16.2.2015 the complainant counsel was absent, the accused filed application under Section 256 of Cr.P.C for dismissing the complaint. Hence notice was ordered to issue to this complainant but on the next date i.e., on 27.5.2015 again the complainant and counsel for the complainant were absent. In spite of the notice, the complainant was absent, steps was not taken to issue the process to the accused, therefore complaint came to be dismissed for default as well as for non-prosecution, which is under challenge.

On perusal of the impugned order, it is very much clear that the trial Court passed the order under confusion. Even though accused-respondent was already secured by the Court by issuing NBW and he appeared along with his counsel on 05.12.2014 and got recalled the NBW and the case was posted for recording the plea of the respondent-accused. Once the accused is present and when the matter is posted for recording plea, it is a duty of the Court to record the plea of the accused and if the respondent pleads guilty he has to be convicted, if not pleaded guilty the accused should be posted for recording evidence of the complaint. Therefore when the matter is posted for recording plea of the accused, the presence of the complainant is not compulsory or necessary. Such being the case, merely the accused moved an application under section 256 of Cr.P.C to dismiss the complaint and issuing notice to the complainant is not at all served on the complainant and on the very next day the trial court hurriedly dismissed the complaint for non-prosecution and also for default for not taking steps to secure the presence of the accused by ignoring the previous order and the presence of the accused was already secured by the trial court and next stage was to record the plea of the accused and post the matter for recording evidence. Such being the case, question of filing process for securing the accused does not arise and when the matter is set down for plea, the presence of the complainant is also not compulsory on that day, therefore dismissing the complaint for default, as well as non-prosecution is against the procedure of law in Cr.P.C and therefore the order under challenge is not sustainable. Accordingly the order is liable to be set aside.

This appeal is allowed.

The order of dismissal is set aside and the original record is restored to the trial court and trial court is directed to proceed in accordance with law by securing the presence of the accused respondent.