NAGARAJ MALLAPPA NYAMATI Vs. CHANDRAKANT A BASA6ADKAR

JUDGEMENT

(1.) NOTICE to respondent not necessary since the respondent had not appeared even before the learned Magistrate.

(2.) THE petitioner has presented a complaint before the learned Magistrate under Section 200, Criminal Procedure Code, complaining of commission of offence by the respondent-accused punishable under Section 138 of the Negotiable Instruments Act, 1881. The learned Magistrate has taken cognizance, has recorded the sworn statement, and has found sufficient ground to proceed to issue summons to the respondentaccused. The respondent was duly served with summons on 21-5-1993, but, still he remained absent, and therefore, NBW was issued against the respondent- accused. Same was however not returned either executed, or unexecuted. It was then that the impugned order came to be passed on the ground that the complainant had not taken further steps. The learned Magistrate has erred in throwing the burden on the complainant. Once the petitioner-complainant had taken steps to have the summons served, and once the respondent-accused stood served with summons, and for his failure to be present in the Court once the NBW came to be issued, there was nothing more that the complainant-petitioner could have done in the matter. It was for the Police Officer who had been directed in the warrant to see that the warrant was duly executed. If the warrant could not be executed, there is a separate procedure provided from Section 82, Criminal Procedure Code onwards. Instead of taking recourse to the said provisions, the learned Magistrate has erred in finding fault with the petitioner-complainant in this regard. Petition is therefore allowed. Impugned order is set aside, and the matter is remitted to the learned Magistrate to proceed further in accordance with law.