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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 23^RD DAY OF MARCH, 2018

BEFORE

THE HON’BLE MR.JUSTICE ARAVIND KUMAR

CRIMINAL PETITION NO.1945/2018

BETWEEN:

MR. HARIDAS SALIAN,

S/O. JANARDHAN SALIAN,

AGED ABOUT 48 YEARS,

R/AT ‘SAI SHAM’,

BHARATHI NAGAR,

BIJAI, MANGALORE,

D.K. DISTRICT – 575004.

... PETITIONER

(BY SRI. PRASANNA.V.R, ADVOCATE)

AND:

SMT. RAMA R.SHETTY

PROPRIETOR OF

SHRI HANUMAN ENTERPRISES,

REP. BY GPA HOLDER,

MR. RAVI PRAKASH SHETTY,

S/O. CHANDAIAH SHETTY,

AGED ABOUT 53 YEARS,

R/AT SHRI HANUMAN BUILDING,

KULURU FERRY ROAD,

ALAKE, MANGALORE,

D.K. DISTRICT - 575003

... RESPONDENT

THIS CRIMINAL PETITION IS FILED U/S.482 CR.P.C

BY THE ADVOCATE FOR THE PETITIONER PRAYING TO

QUASH

THE

ORDER

DATED

23.02.2018

IN

C.C.NO.636/2017 PASSED BY THE LEARNED J.M.F.C (V

COURT) D.K., MANGALORE, REJECTING THE APPLICATION

FOR

RECALLING

THE

NBW

ISSUED

AGAINST

THE

PETITIONER/ACCUSED.

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THIS

CRIMINAL

PETITION

COMING

ON

FOR

ADMISSION

THIS

DAY,

THE

COURT

MADE

THE

FOLLOWING:

O R D E R

Issuance of notice to respondent is dispensed

with, since no order prejudicial to the interest of

respondent is being passed in this petition.

2.

Heard, Sri. Prasanna V.R., learned counsel

appearing for petitioner. Perused the order under

challenge

dated

23.02.2018

passed

in

C.C.No.636/2017, whereunder application filed by the

petitioner/accused under Section 70(2) of Cr.P.C. for

recall of non-bailable warrant issued, has been rejected

on the ground of absence of accused.

3.

Respondent herein has initiated proceedings

against the petitioner/accused by filing a complaint

under Section 138 of Negotiable Instruments Act, 1881

(hereinafter referred to as ‘NI Act’ for short), alleging

that respondent/accused has committed an offence

punishable under Section 138 of NI Act. Summons

issued to the petitioner/accused was not served. As

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such learned Magistrate by order dated 07.12.2017 has

issued non-bailable warrant to the accused. Thereafter,

on 23.02.2018 accused having come to know about

warrant having been issued against him, filed an

application under Section 70(2) of Cr.P.C. for recall of

the warrant. However, learned Magistrate on the

premise that accused is not present when the

application is taken-up for consideration, has rejected

the said application.

4.

Section 70(2) of Cr.P.C. does not indicate

that accused should be present when the warrant for

recall is filed. Offence alleged against petitioner/accused

is under Section 138 of NI Act and it is a summon’s

case. As such learned Magistrate ought to have

considered the application for recall of non-bailable

warrant even in the absence of accused.

5.

Hon’ble High Courts of Andhra Pradesh,

Delhi and Bombay have taken a view that application

for recall of non-bailable warrant issue against accused

in summons case cannot be rejected on the ground of

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accused not being present at the time of said

application being considered. This Court is in complete

agreement with the view expressed by the said High

Courts and as such, order under challenge cannot be

accepted.

Hence, I proceed to pass the following:

ORDER

(i)

Criminal petition is hereby allowed.

(ii)

Order dated 23.02.2018 passed in

C.C.No.636/2017 by the learned JMFC

V

Court,

Dakshina

Kannada,

Mangalore, rejecting the application

filed for recall of non-bailable warrant

issued against petitioner/accused, is

hereby set aside.

(iii)

Application filed by petitioner under

Section 70(2) of Cr.P.C. for recall of

non-bailable warrant is hereby allowed

in view of categorical undertaking given

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by

learned

counsel

appearing

for

petitioner

that

accused

would

be

present on the next date of hearing

before

JMFC

V

Court,

Dakshina

Kannada,

Mangalore,

which

is

adjudicated in PCR No.784/2017. Said

undertaking is also placed on record.

In

view

of

petition

having

been

allowed,

I.A.