A criminal complaint dismissed for default may be restored if the non-appearance of the complainant was due to a bona fide clerical error in the case diary or extraordinary circumstances such as a pandemic.

(VIDE ORDER DATED 03.02.2026, NOTICE TO RESPONDENT IS DISPENSED WITH)

THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4) OF CR.P.C. PRAYING TO SET ASIDE THE IMPUGNED ORDER DATED 07.04.2022 PASSED IN C.C.NO.30575/2018 BY XXVI A.C.M.M., BENGALURU FOR THE OFFENCE PUNISHABLE UNDER SECTION 138 OF NEGOTIABLE INSTRUMENT ACT AND RESTORE THE SAME TO THE ORIGINAL FILE FOR DISPOSAL OF THE SAME ON THE MERITS OF THE MATTER.

THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

CORAM: HON'BLE MR. JUSTICE G BASAVARAJA

ORAL JUDGMENT

1. The appellant has preferred this appeal against the order dated 07.04.2022 passed in C.C.No.30575/2018 by XXVI A.C.M.M., Bengaluru (for short, 'trial Court'), as the trial Court has dismissed the case for default of the complainant.

2. The appellant had filed a complaint under Section 138 of Negotiable Instruments Act, 1881 (for short, 'NI Act'). After taking cognizance, the case was registered in C.C.No.30575/2018 before the trial Court against the accused for the offence under Section 138 of NI Act and summons was issued to the accused by RPAD. Thereafter, the case was adjourned from time to time till 07.04.2022. On 07.04.2022, the trial Court has passed the following order:

"Case called out.

Complainant absent.

Counsel for complainant absent.

No representation on behalf of complainant.

Perused the order sheet, here in this case the complainant not present before the court to take proper steps. Its shows that the complainant is not interested to proceed with the case and it is a an oldest case in the year 2018.

Therefore looking in to these all facts and circumstances it is fit case for dismiss for default.

Hence the present complaint is dismissed for default of the complainant."

3. Learned counsel for appellant has contended that non-appearance and non-taking steps in respect of the fresh address of the accused is due to wrong entry of the next date in the case diary as 07.07.2022 instead of 07.04.2022. Due to inadvertence and bona fide mistake, the trial Court is not justified in dismissing the complaint for default of the complainant. Though fully aware of the outbreak of the COVID-19 pandemic from 15.03.2020 till 28.02.2022, none of the colleagues in the office of advocate were at Bengaluru so as to attend the matter. Several advocates have lost their valuable lives, which was the most frightening and factual situation that was prevalent in the entire Country and the world. Therefore, the trial Court ought not to have dismissed the complaint for default of the complainant and the same is bad in law and sought to allow this appeal.

4. Accepting the reasons urged in the grounds of memorandum of appeal, I am of the opinion that it is just and proper to provide one more opportunity to the complainant to take necessary steps to secure the accused.

5. Accordingly, I proceed to pass the following:

ORDER

i. The appeal is allowed

ii. The impugned order dated 07.04.2022 passed in C.C.No.30575/2018 by the XXVI A.C.M.M., Bengaluru is set aside and the appeal in C.C.No.30575/2018 shall be restored to file;

iii. The trial Court is directed to provide an opportunity to the appellant-complainant to take steps against the accused. Thereafter, the trial Court shall dispose of the case in accordance with law;

iv. The appellant-complainant is directed to appear before the trial Court on 12.03.2026 without seeking any further notice from the trial Court;

v. Registry is directed to send the copy of this order to the trial Court and the appellant-complainant.