Heard arguments.

2.

The appellant/complainant has preferred this

appeal against the order of dismissal of the complaint for

non prosecution dated 27.04.2023 on the file of II Addl.

Civil Judge and JMFC, Devanahalli.

3.

The rank of the parties in this appeal are

referred in the same rank as referred by the Trial court.

4.

The complainant has filed complaint under

Section 200 of Cr.P.C. against the accused for the

commission of offence punishable under Section 138 of

N.I. Act. The trial Court took cognizance against the

- 3 -

accused and a case was registered in CC No.5040/2016

and summons was issued to the accused.

5.

In response to the summons, accused appeared

before the Court and took bail. As the accused has not

regularly appeared before the Court, NBW was issued

against him as per order dated 06.01.2020 and the case

was posted to 19.02.2020. On 19.02.2020 accused was

present and an application was filed under Section 70(2)

of Cr.P.C. and the same was allowed by the trial Court on

cost of Rs.100/- and substance of accusation was

recorded. Accused pleaded not guilty and claimed to be

tried. Then, case was posted for evidence on 07.04.2020.

Due to pandemic Covid-19, in view of SOP issued by

Hon’ble High Court of Karnataka vide notification dated

21.05.2021, the matter was adjourned from time to time.

6.

On 27.04.2023, the Court has passed the order,

which reads as under:

"Case called out at 11.40 AM.

Accused is present.

- 4 -

Learned counsel for accused is also present.

Learned counsel for Complainant called out

absent.

No representation made from complainant

side.

Case again called out at 3.30 PM.

Accused is present.

Learned counsel for accused is also present.

Learned counsel for Complainant called out

absent.

No representation made from complainant

side.

Case finally called out at 4.20 PM.

Accused is present.

Learned counsel for accused is also present.

Learned counsel for Complainant called out

absent.

No representation made from complainant

side.

The present case was posted for complainant

evidence since 19-02-2020.

But complainant and his counsel have not

chosen to appear before court and to lead

complainant evidence till today.

In spite of granting sufficient opportunity to

the complainant and his counsel have not lead

complainant evidence and failed to come before the

court.

- 5 -

Hence, the above complaint is dismissed as

non prosecution."

7.

The learned counsel for the complainant has

submitted that the complainant had given original cheque

and all necessary documents to the junior counsel

attached to the senior counsel’s office to prepare evidence.

The junior counsel informed the complainant that evidence

is ready and he will lead the evidence on next date. On

next date i.e., 07.04.2020 matter was adjourned due to

closure of Court due to Covid-19 and the junior counsel

attached to the senior counsel’s office had informed the

complainant that documents will be produced before the

Court once the Court proceedings resume and he kept the

original documents with him and he said that he will

inform the complainant if his attendance is required before

the Court. Believing the version of the junior counsel

attached to the senior counsel’s office, complainant was

under the impression that complainant’s evidence would

be led. The complainant had approached the senior

counsel after Covid-19 pandemic and enquired about the

- 6 -

status of the case. After thorough verification, the

complainant came to know about the impugned order,

thereafter, he filed this appeal.

8.

Accepting the arguments advanced on behalf of

the complainant/appellant and considering the facts and

circumstances of the case, in the interest of the justice, in

my opinion, one more opportunity has to be given to the

complainant to prosecute his case. Hence, I proceed to

pass the following:

ORDER

i)

The appeal is allowed;

ii)

The impugned order passed on 27.04.2023

by II Addl. Civil Judge & JMFC, Devanahalli is

set aside;

iii)

Case is remitt