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.

2.

Heard the arguments of learned counsel for the

appellant and learned counsel for the respondents.

3. 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

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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.

4. 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

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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

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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.

Sd/-

JUDGE

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