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2014 DIGILAW 334 (PNJ)

Jindal Petro v. A. K. Bhutani

2014-02-12

M.M.S.BEDI

body2014
JUDGMENT Mr. M.M.S. Bedi, J. (Oral):- Despite service, the respondent has not put in appearance. 2. The delay in filing of the appeal against the acquittal is condoned. 3. Since the respondent has opted not to appear and contest the petition, the matter has been taken up for consideration on merits in the absence of respondent. 4. Leave to appeal under Section 378 (4) Cr.P.C., is granted. The appeal be registered. 5. Heard. 6. A perusal of the record indicates that the petitioner had filed a complaint under Section 138 of the Negotiable Instruments Act. After the appearance of the respondent, the matter was taken up on one date i.e. 3.9.2012. On said date no one had appeared on behalf of the complainant till 1 PM. Thereafter, counsel for the complainant had made a request for grant of adjournment on account of the fact that the complainant had failed to appear without any intimation to the counsel. 7. As the counsel failed to file application for exemption till 3 PM, the trial Court opted to dismiss the complaint in default of appearance of the complainant. Considering the deemed acquittal of the respondent offence under Section 138 of the Negotiable Instruments Act, being a summons case, the present appeal against acquittal has been filed. It is not out of place to observe here that the punishment under Section 138 of the Negotiable Instruments Act, has been extended to two years vide amendment of the year 2002 vide Amendment Act 55 of 2002. With the amendment, the proceedings under Section 138 of the Negotiable Instruments Act, can be considered to be proceedings in warrant case. Even if it is presumed to be a summons case, the acquittal of the respondents on dismissal of complaint in default does not appear to be reasonable and in the interest of justice, especially when the complaint had been filed on behalf of a firm through its Manager. It has been sought to be explained that on 3.9.2012, the complainant was not well making it impossible for the complainant to appear in the Court. As per provisions of Section 309 Cr.P.C., the trial Court had jurisdiction to adjourn the proceedings for another date on the request of counsel for the complainant who was present in the Court. It has been sought to be explained that on 3.9.2012, the complainant was not well making it impossible for the complainant to appear in the Court. As per provisions of Section 309 Cr.P.C., the trial Court had jurisdiction to adjourn the proceedings for another date on the request of counsel for the complainant who was present in the Court. The Court has got jurisdiction to defer the case for examination in chief or cross-examination under Section 309 (2) Cr.P.C. subject to payment of costs as per Explanation II appended thereto. The haste with which the trial Court has opted to dismiss the complaint is not appreciable in the present case. The order dated 3.9.2012, dismissing the complaint of the petitioner is hereby set aside. The trial Court is directed to take up the complaint on 22.3.2014 after receipt of a certified copy of this order and proceed further after issuing notice to the respondent. 8. The complaint is ordered to be restored subject to payment of costs of Rs.15,000/- (rupees fifteen thousand only). The complainant will deposit the costs on appearance of the respondentaccused. 9. The criminal appeal is accordingly allowed. ---------0.B.S.0------------