- 1 - HC-KAR NC: 2025:KHC:43215 CRL.A No. 1808 of 2022 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF OCTOBER, 2025 BEFORE THE HON'BLE MR. JUSTICE G BASAVARAJA CRIMINAL APPEAL NO. 1808 OF 2022 (A) BETWEEN: MR. MURALIDHAR M.G., AGED ABOUT 52 YEARS, S/O M S GOPALAKRISHNA RAO, R/O NO.20, 'ANANGHA', 6TH BLOCK, BANAGIRI NAGAR, BSK 3RD STAGE, BANGALORE - 560085 …APPELLANT (BY SRI. KRISHNA S VYAS., ADVOCATE) AND: MR. H K GANESH, AGE AND S/O NOT KNOWN TO COMPLAINANT, R/O NO.51, 7TH B MAIN, 4TH BLOCK, JAYANAGAR, BANGALORE - 560 041. …RESPONDENT (V/O DTD:29.10.2025 NOTICE TO RESPONDENT IS DISPENSED WITH) THIS CRL.A IS FILED U/S 378(4) CR.P.C PRAYING TO SET ASIDE THE IMPUGNED ORDER, VIDE ANNEXURE-A DATED 16.09.2022, PASSED BY THE LEARNED XVI ADDL CHIEF METROPOLITAN MAGISTRATE AT BENGALURU IN C.C.NO.32085/2018 AND TO RESTORE THE FILE IN C.C.NO.32085/2018 ON THE FILE OF THE XVI METROPOLITAN MAGISTRATE AT BENGALURU. THIS APPEAL COMING ON FOR ADMISSION THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: Digitally signed by LAKSHMINARAYAN N Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:43215 CRL.A No. 1808 of 2022 CORAM: HON'BLE MR. JUSTICE G BASAVARAJA ORAL JUDGMENT The appellant/complainant has preferred this appeal against the order of dismissal passed by the trial Court for non-prosecution. Hence, notice to the respondent is dispensed with. 2. The appellant has preferred this appeal against the order passed by the trial Court dated 16.09.2022. 3. The complaint/appellant has filed the complainant under Section 138 of Negotiable Instruments Act. Same was registered in PCR No. 14708/2018. After taking cognizance, the case was registered in C.C No.32085/2018 and summons was issued to the accused. The accused did not appear and in response to the summons. Therefore, the trial Court has issued NBW on 22.01.2020. On that day without vakalath the advocate has appeared and filed an application under Section 70(2) of Cr.P.C. However, the trial Court allowed the application - 3 - HC-KAR NC: 2025:KHC:43215 CRL.A No. 1808 of 2022 filed under Section 70(2) of Cr.P.C with cost of Rs.500/-. The cost has not paid, then NBW was issued from time to time. Thereafter, on 16.09.2022, the trial Court has passed the following order. Case called out. Complainant and accused absent. No representation. To Call. Again Case Called out at 2.45 PM. Complainant absent. No representation. Hence call again. Again case called out, at 5.20 P.M. Complainant called out, absent. No representation for complainant. Perused the records. There are more than 27 dates of hearing running around for more than 4 years for steps and also for service of summons and execution of NBW and to furnish the process fee. But the complainant continuously remained absent. Inspite of sufficient opportunity were given, the complainant continuously remained absent and failed to take steps. Inspite of order, process - 4 - HC-KAR NC: 2025:KHC:43215 CRL.A No. 1808 of 2022 also not paid continuously for several dates of hearing. No doubt it is true that the case should not be dismissed either for default or for non prosecution. But on the other hand, the case has to be decided on merits and the real controversy between the parties has to be adjudicated finally and effectively. But in this case, the complainant continuously remained absent. This shows that, the complainant is not interested in prosecuting this case. Hence, this court has no option, but to dismiss the complaint for non prosecution. Hence, complaint is dismissed for non- prosecution. 4. On perusal of the order sheet, it is crystal clear that without appearance of the accused and without filing vakalath, the trial Court has committed an error in allowing the application filed under Section 70(2) of Cr.P.C. Even memo of appearance of the accused also not filed. Then NBW was issued. The trial Court has not verified whether the NBW is executed or not. Without following due procedure, the trial Court has mechanically, without application of mind dismiss the complaint for - 5 - HC-KAR NC: 2025:KHC:43215 CRL.A No. 1808 of 2022 non-prosecution which is not sustainable under law. Hence, I proceed to pass the following: ORDER i) Appeal is allowed. ii) The impugned order passed by the XVI Addl. CMM, Bengaluru City dated 16.09.2022 in C.C No.32085/2018 is set aside; iii) C.C No.32085/2018 shall be restored; iv) The complainant is directed to appear before the trial Court without seeking any further notice on 02.12.2025; v) The complainant is directed to take necessary steps to secure the accused. Thereafter the trial Court shall proceed with the case in accordance with law. vi) Registry is directed to send a copy of this order to the trial Court to take necessary action. Sd/- (G BASAVARAJA) JUDGE KBM., List No.: 1 Sl No.: 71