Research › Search › Judgment

Madhya Pradesh High Court · body

2006 DIGILAW 1041 (MP)

H. B. Lalwani v. G. S. Raikwar

2006-08-31

U.C.MAHESHWARI

body2006
JUDGMENT Maheshwari, J. -- 1. This appeal is directed by the appellant-complainant against the order dated 12.5.2003 and 13.5.2003 passed by the Judicial Magistrate, Bhopal in Criminal Complaint Case No. 114/02 dismissing the complaint on his single non-appearance and non compliance of the order for submitting the process fee. 2. The facts giving rise to this appeal are that complainant filed a private complaint against the respondents in which the cognizance for the offences under section 211, 499 of IPC was taken and on payment of process fees the bailable warrants were directed against the respondents and the case was fixed for their appearance by order dated 13.3.2003. Subsequent to it the case was taken up on 12.5.2003. On such date neither the complainant appeared nor the process was submitted within the prescribed time. Resultantly, the complaint was dismissed on these grounds. On the next day, i.e. 13.5.2003 by mentioning some cause regarding his non appearance an application for restoration of the same was filed but on consideration it was dismissed. Resultantly, respondents deemed to be acquitted under section 245 of IPC, hence this appeal. 3. On behalf of the appellant, learned counsel Shri Ashok Lalwani has submitted that on the date of dismissal of the complaint, the appellant had gone out of station and the same could not inform to his counsel. Consequently, in the lack of intimation the application for exemption was not filed by his counsel, hence, the complaint was dismissed. He also said that due to oversight the P.F. could not be submitted-in compliance of the order. Accordingly, the complaint was dismissed only on this single non-appearance. He further said that such date was fixed for appearance of the respondents and not for hearing of the case. Therefore, it could not be dismissed but under the wrong premises the impugned order was passed. In alternate he said that by invoking the inherent jurisdiction of this Court the order regarding dismissal of the complainant only on single default be set aside and it be restored by condoning the default. He also placed his reliance of some decided cases of apex Court and this Court in which the complaint was restored. 4. No-one has appeared on behalf of the respondents to assist the Court for adjudication of this appeal. 5. He also placed his reliance of some decided cases of apex Court and this Court in which the complaint was restored. 4. No-one has appeared on behalf of the respondents to assist the Court for adjudication of this appeal. 5. Having heard learned counsel for the appellant and on perusing the impugned order, it appears that on account of single default of nonappearance of the complainant and non-compliance of the earlier order regarding payment of the process fees the complaint was dismissed. This question was answered-by this Court in the matter of Dinesh Kumar v. M/s. Vikrant Enterprises and others decided on 25.3.2004 in MCrC No. 402/01. It was held as under: - "The Supreme Court in Mohammad Azeem v. Venkatesh and another [ (2002) 7 SCC 726 ], has held that one singular default in appearance on the part of the complaint which resulted into dismissal of his complainant was not proper and directed for the restoration of the complaint case. The said case was also under section 138 of the Negotiable Instruments Act, 1881." 6. In view of the aforesaid earlier decision of this Court on examining the case at hand the same is directly applicable to it. Hence by allowing this appeal the impugned orders are set aside and the impugned complaint is hereby restored. The appellant is further directed to comply with the order of the trial Court within 15 days from the dale of receiving the record by the trial Court. The record of the trial Court be sent back immediately with a direction to decide the same in accordance with law.