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2007 DIGILAW 1905 (RAJ)

J. K. Industries Ltd. v. Smt. Santosh Chauhan

2007-10-04

GOPAL KRISHAN VYAS

body2007
JUDGMENT 1. - Heard learned counsel for the parties. 2. For the reasons mentioned in the application filed under Section 5, Limitation Act for condonation of delay is allowed. Having heard learned counsel for the parties, the application for leave to appeal is also allowed. Office is directed to register the appeal. 3. With the consent of the parties, the appeal is finally heard. 4. In this case, respondent No. 1 Smt. Santosh Chauhan is proprietor of respondent No. 2 firm. Appellant complainant filed a complaint under Section 138, Negotiable Instruments Act (hereinafter, referred to as "the Act") read with Section 420, I.P.C. against the respondents before the Judicial Magistrate, Jodhpur. The complainant alleged that it is manufacturer doing business as J.K. Tyres and other products and respondent No. 2 firm is its agent. The respondents used to purchase the products of the appellant firm and was selling to customers and was getting commission allowed on the sale. 5. The complainant laid allegation against the respondents that the respondents purchased products from the appellant in the tune of Rs. 15,33,362/- during the period 17.07.1998 to 31.05.1999, out of which only Rs. 35,935/- and, as on 06.03.2000, an amount of Rs. 14,93,427/- was outstanding against the respondents due to the appellant. After several demands, it is alleged, respondent No. 1 drew an a/c payee cheque bearing No. 198462 for Rs. 14,93,427/- in favour of the appellant on 13.08.2001. The said cheque was submitted for realisation in the Bank of Rajasthan Ltd., Sardarpura, Jodhpur but the cheque was not realised due to insufficient amount in the account of the respondent. 6. The appellant resorted to the provisions of the Act, in which, after taking evidence of. the complainant the respondent was summoned before the Court and process was issued under Section 204(1), Cr.P.C. by order dated 22.01.2003. Thereafter, the case was transferred to the Court of Addl. Chief Judl. Magistrate, (CBI Cases), Jodhpur for adjudication. Despite process and bailable warrants having been issued the respondent did not appear before the Court. 7. On 21.12.2004, when the case was listed before the Court for appearance of the respondent accused, on that date, the Presiding Officer of the court was on leave and as such the Reader of the Court informed the appellant that next date in the case is scheduled on 20.03.2005 and fresh bailable warrant has been issued to the respondent accused. On 21.12.2004, when the case was listed before the Court for appearance of the respondent accused, on that date, the Presiding Officer of the court was on leave and as such the Reader of the Court informed the appellant that next date in the case is scheduled on 20.03.2005 and fresh bailable warrant has been issued to the respondent accused. 8. According to the learned counsel for the appellant the appellant bona fide entered the date informed by the Reader in diary; but, on that date i.e., 20.03.2005, it was Sunday and it was thought that due to bona fide mistake the date was given. On the next day, the counsel for the appellant searched for the case in the cause-list but the case was not listed in the cause-list and, upon enquiry the Reader of the Court also showed inability about making available the cause-list of 21.12.2004. It has, however, come to the knowledge of the appellant that on 21.12.2004 the next date of hearing was given on 29.03.2005; but, before that date, on 18.01.2005, the respondent accused appeared before the trial court and filed bail application. The appellant, however, did not receive any information of her appearance before the Court and attendance of the respondent-accused was marked in the absence of the complainant which is evident from the order-sheet dated 18.01.2005 and the next date 29.03.2005 was already fixed in the case. Since the date 29.03.2005 was fixed in the case in the absence of the appellant and his counsel, the appellant was not aware of it and, on 29.03.2005, the learned Magistrate dismissed the complaint in default and for want of evidence and acquitted the respondent-accused. The appellant is challenging the said order on the ground that only for the reason as aforesaid since the date was wrongly informed by the Reader of the Court the appellant was not able to appear before the Court and merely for the absence of the appellant on a single date of respondent was acquitted and complaint filed by the appellant was dismissed for non-prosecution. 9. 9. Learned counsel for the appellant vehemently contended that the complainant and his counsel did not appear before the Court on 29.03.2005 only for the reason that wrong date was informed by the reader of the Court and merely for the absence of the appellant on a single date the trial Court dismissed the complaint and acquitted the respondent which is against the law laid down by the apex Court in 2003(1) CJ (SC) Cr. 28, Mohd. Azeem v. A. Venkatesh & Another . It is contended by learned counsel for the appellant that in the said reported case, the Hon'ble Supreme Court has held that if the complainant somehow noted wrong date and sufficient cause is shown before the trial Court for non-appearance, such wrongly noting the date is a valid ground for restoration of the complaint. 10. Their Lordships of the Supreme Court have observed in the above cited case as follows : "From the contents of the impugned order of the High Court, we have noticed that there was one singular default in appearance on the part of the complainant. The learned Judge of the High Court observes that even on earlier dates in the course of trial, the complainant failed to examine the witnesses. But that could not be a ground to dismiss his complaint for his appearance on one single day. The cause shown by the complainant of his absence that he had wrongly noted the date, has not been disbelieved. It should have been. held to be a valid ground for restoration of the complaint. In our opinion, the learned Magistrate and the High Court have adopted a very strict and unjust attitude resulting in failure of justice. In our opinion, the learned Magistrate committed an error in acquitting the accused only for absence of the complainant on one day and refusing to restore the complaint when sufficient cause for the absence was shown by the complainant." 11. In this view of the matter, it is prayed that the impugned order may be set aside and the case may be remitted to the trial court. 12. Per contra, learned counsel for the respondent vehemently opposed the prayer of the appellant and supported the impugned order. In this view of the matter, it is prayed that the impugned order may be set aside and the case may be remitted to the trial court. 12. Per contra, learned counsel for the respondent vehemently opposed the prayer of the appellant and supported the impugned order. It is submitted that in the absence of the appellant complainant, the trial Court was left with no option but to dismiss the complaint and, therefore, there is no good ground made out for interference in the impugned order by this Court. 13. I have perused the impugned order as well as material on record, more particularly order-sheets dated 18.12.2004 and 29.03.2005. 14. In my view, the order impugned dated 29.03.2005 cannot be allowed to stand being prejudicial to the interest of justice. Justice must not only be done, it must also appear to have.been done. Apparently the trial Court has acted in exercise of the jurisdiction vested in it, but, there is sufficient valid ground shown for the non-appearance of the appellant and, therefore, the order of dismissal of the complaint for want of prosecution cannot be sustained. Consequently, while following the judgment of the Hon'ble Supreme Court, reported in 2003(1) CJ (SC) Cr. 28 (supra), the impugned order dated 29.03.2005 passed by the Addl. Chief Judi. Magistrate (CBI Cases), Jodhpur in Criminal Case No. 1183/2004 is set aside. The trial Court is directed to proceed in accordance with law.Application allowed. *******