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2001 DIGILAW 100 (CHH)

Ram Dhan Khandelwal v. Manish Chouhan

2001-10-03

FAKHRUDDIN

body2001
ORDER Fakhruddin, J. 1. The revision has been filed against the impugned order dated 13-7-2001 passed by the J.M.F.C., Durg, in Criminal Case No. 72/1996 whereby the Court has dismissed the complaint filed under Section 138 of the Negotiable Instruments Act. The complaint is pending before the Court and the complainant and the accused persons were appearing. Certain objections were raised regarding limitations etc. by the accused. The learned Magistrate rejected those objections and held that the complaint is within limitation. The case was adjourned. 2. According to the complainant the case was fixed on 6-10-1998, but the counsel for the complainant/applicant has wrongly noted the date as 7-10-1998. When complainant appeared before the Court, he came to know that his complaint under Section 138 of Negotiable Instruments Act has been dismissed in default. Thereafter, the complainant has filed an application for restoration, the said application was rejected. 3. The learned Trial Court has observed that on 6-10-1998 the complaint was dismissed under Section 256, Cr.PC and therefore the respondent/ accused has been acquitted of the charge under Section 138 of Negotiable Instruments Act. 4. Learned counsel for the applicant placed reliance on a decision of Punjab & Haryana High Court in Criminal Revision No. 781/1997 (Ajay Kurana v. . Anil Cloth House), wherein the Court has held as follows:-- "Petitioner-complaint has filed copy of the second order dated 29-7-1997 passed by the learned Trial Magistrate. Even if he has not challenged that order in this revision he can still challenge the first order passed by the Trial Magistrate on 29-7-1997 dismissing his complaint for his non-appearance. The learned Magistrate after recording the complaint's preliminary evidence ought to have con sidered the evidence and should have passed the necessary order either summoning the accused or dismissing the complaint on merits, but he chose to dismiss the complaint in default for non-appearance of the complainant, but from the other order passed on 27-9-1997 itself it is evident that at 11:30 A.M. on that very date, the complainant appeared before the Court, filed an application to restore his com plaint, but that too was dismissed. It further reveals that the petitioner-complainant's complaint was dismissed in the early part of the day as during those days the Court hours were from 7:00 A.M. to 1:00 A.M. 5. It further reveals that the petitioner-complainant's complaint was dismissed in the early part of the day as during those days the Court hours were from 7:00 A.M. to 1:00 A.M. 5. Learned counsel for the applicant has also placed reliance on a decision of the Supreme Court reported in AIR 1998 SC 596 (Associated Cement Company Limited v. Keshavanand) wherein it has been held as follows:-- 18. Reading the section in its entirety would reveal that two constraints arc imposed on the Court for exercising the power under the section. First is, if the Court thinks that in a situation it is proper to adjourn the hearing then the Magistrate shall not acquit the accused. Second is, when the Magistrate considers that personal attendance of the complainant is not necessary on that day the Magistrate has the power to dispense with his attendance and proceed with the case. When the Court notices that the complainant is absent on a particular day the Court must consider whether personal attendance of the complainant is essential on that day for the progress of the case and also whether the situation docs not justify the case being adjourned to another date due to any other reason. If the situation does not justify the case being adjourned the Court is free to dismiss the complaint and acquit the accused. But if the presence of the complainant on that day was quite unnecessary then resorting to the step of axing down the complainant may not be a proper exercise of the power envisaged in the section. The discretion must, therefore, be exercised judicially and fairly without impairing the cause of administration of criminal justice. 6. In view of the aforesaid decisions quoted hereinabove and having regard to the position of law declared by the Supreme Court and further having thus considered the facts and circumstances of the present case, material on record and the fact that the matter is pending since 1996 and the parties were appearing before the Court, in the opinion of this Court it is a fit case to exercise the jurisdiction under Section 482, Cr. PC. The impugned order dated 13-7-2001 whereby the petitioner's complaint was dismissed in default is set aside and the case is restored to its original number. The matter is remitted back to the Trial Court. The record be sent back immediately. 7. PC. The impugned order dated 13-7-2001 whereby the petitioner's complaint was dismissed in default is set aside and the case is restored to its original number. The matter is remitted back to the Trial Court. The record be sent back immediately. 7. The parties shall appear before the C.J.M., Durg on 20-11-2001. The parties may appear either in person or through their counsel. Thereafter the Court shall proceed with the matter expcditiously in accordance with law.