Karnataka Soaps and Detergents Ltd. Vs. Mr. Swapan Jaisvml, Proprietor M/S.Prince Traders - Court Judgment

Excerpt:
[b.v.nagarathna j.] this criminal appeal is filed under section 378(1) ct.p.c. praying to set aside the impugned order dated 24.7.2006 passed by the xx ac mm, bangalore, in c.c.ho. 1073/ 2004.1. this appeal is filed by the complainant cy challenging the order dated 24.07.2006, by which, the complaint (c.c.no. 1073/2004) was dismissed for not taking steps against the accused.2. the relevant facts of the case for the disposal of this appeal are that, the appellant who is the complainant, had filed a complaint under section 138 of the negotiable instruments act (for short, "the act") read with section 20c ct.p.c. against the respondent for allegedly committing an offence under section 138 of the act. the complaint was presented on 04.11.2003 and on 07.01.2004 the trial court took cognizance of the offence punishable under section 138 of the act and proceeded to register a ninal case against the accused for the aforesaid offence issued bailable warrant to the accused returnable by 28.06.2004. on that day steps were not taken as according to appellant on account of transfer of presiding officer and the matter was posted to 18.10.2004. on 27.09.2004, the complainant filed an application under section 309 cr.p.c. for advancement of the case with process memo and the court ordered summons to be issued to the accused returnable by 18.10,2001 and again a similar order was made on 18.10.2004, the case was thereafter called on 9.2.2005, 31.5.2005 and 17.10.2005 on which dates once again an order was passed for issuance of summons and for posting of die case on 7,3.2006. in the meanwhile, bj- notification dated 23,08,2005, the complaint was transferred to xx ac mm, bangalore. on 7.3.2006, once again order for re-issuance of summons to the accused was passed. the case was listed on 25.5.2006 and on 6.7.2:006 on which dates no further orders were passed and subsequently on 24,7.2006 the complaint was dismissed on the ground that, steps had not been taken against the accused. the said order is in challenge in this appeal.3. i have heard learned counsel for the appellant and the respondent is served and unrepresented and perused the material on record.4. it is submitted on behalf of the appellant that, on 7,3,2006 the order for re-issue of summons to the accused was passed and subsequently, the matter was posted on 25.5.2006 and 6.7.2006 and since steps were not taken, the complaint was dismissed on 24.7.2006, as a result of the said order, there has been injustice caused to the complainant in as much as the complainant has a good case on merits and in view of the dismissal of the complaint on account of steps not being taken, further proceedings came to an end. she therefore submits that, trie order dated 24.7.2006 be set aside and the complaint be restored on the file of the xx acmm, bangalore,5. having heard the counsel for the appellant and on perusal of the material on record it is clear that, the appellant had initially taken steps to serve summons and the bailable warrant on the respondent/ accused but the same was not served and the case was adjourned to 9.2.2005, again the complainant had taken steps and the matter was posted to 3,1,05.2005 and later to 17.10.2005. subsequently, by notification dated 23,8.2005 the matter was transferred to xx ac mm, bangalore and the matter was called on 25.5.2006, 6.7.2006 and 24.7.2006. before the said court, the matter was called on 7.3.2006 and an order was passed to re-is sue summons to the accused. but on 24.7,2006 the complaint has been dismissed for steps not having been taken by the complainant. it is noticed that, in the initial stage the complainant had taken steps for issuance of summons to the accused, but however, it was net served and subsequently by order dated 7.3.2006 re-issue of summons to the accused was ordered. at that stage, complainant has not taken stenos6. it is submitted by the learned cousnel for the complainant that non furnishing of process fee for issue of summons was a bonafide lapse and unintentional and therefore, she submits that, the order dated 24.7.2006 be set aside and an opportunity' be given to the complainant to take fresh steps against the accused.7. having regard to the aforesaid dates during which the proceedings have taken place before two different courts and there was a direction for re- issuance of summons on 7.3.2006 that is nearly two years after the filing of the complaint and the fact that there was a bonande and unintentional lapse on the part of the complainant in not taking steps to reissue summons to the accused and keeping in mind interest of justice, the order dated 24.7,2006 is set aside. consequently, c.c.ko.1073/2004 is restored to the file of xx ac mm, bangalore.accordingly, appeal succeeds and is allowed.the office is directed to transmit the records