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2017 DIGILAW 1414 (HP)

Uma Dutt v. Pawan Kumar Thakur

2017-12-19

TARLOK SINGH CHAUHAN

body2017
JUDGMENT Tarlok Singh Chauhan, J. (Oral) - The question raised in this appeal is a pure question of law and is otherwise no longer res integra insofar as this Court is concerned. Moreover, this appeal emanates from the proceedings initiated by the appellant under Section 138 read with section 142 of the Negotiable Instruments Act, 1881 (for short ''Act'') wherein the amount in dispute is only Rs. 50,000/-. 2. This Criminal Appeal is directed against the order dated 23.11.2016 passed by learned Additional Chief Judicial Magistrate, Court No.2, Shimla, in a Criminal Complaint No.549-111/14/2013 of 2016 filed by the appellant, whereby the complaint filed by him under the Act, came to be dismissed for want of prosecution. The impugned order passed by the learned trial Court reads thus: "23.11.2016. Present :- None. Complainant not present despite personal service. Be awaited. Put up after respite. (Amardeep Singh) ACJM, Court No.2, Shimla, H.P. Called Again :- 23.11.2016. Present :- None. Called again. Still none appeared on behalf of complainant. Put up after respite. (Amardeep Singh) ACJM, Court No.2, Shimla, H.P. Taken Up After Lunch :-23.11.2016. Present :- None. Case called time and again before and after lunch. However, none appeared on behalf of the complainant. It appears that the complainant is no more interested in pursuing this complaint. Accordingly, the complaint is dismissed for want of prosecution. Be consigned to records. (Amardeep Singh) ACJM, Court No.2, Shimla, H.P." 3. This Court in Vinod Kumar Verma vs. Ranjeet Singh Rathore, Criminal Appeal No. 367 of 2015, decided on 6.5.2016 has in similar circumstances where the complaint under the Act had been dismissed in default observed as under:- "3. Evidently, a very hyper technical and pedantic approach has been adopted by the learned court below by dismissing the complaint for default. The complainant was diligently pursuing his remedies and he has also given an explanation for his non appearance on the date fixed. Even otherwise there is no reason why the complainant would stop pursuing his case, after all it is a complaint involving dishonour of cheque. That apart, it is always in the interest of justice that the cases should be adjudicated on merits. 4. Similar issue came up before the Hon''ble Supreme Court in Mohd. Even otherwise there is no reason why the complainant would stop pursuing his case, after all it is a complaint involving dishonour of cheque. That apart, it is always in the interest of justice that the cases should be adjudicated on merits. 4. Similar issue came up before the Hon''ble Supreme Court in Mohd. Azeem vs. A. Venkatesh & another (2002) 7 SCC 726 and the Hon''ble Supreme Court has held that the complaint ought not to have been dismissed by the court on account of single default on the part of complainant. It is apt to reproduce paras 3 and 4 of the judgment: "3. 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 (sic absence) 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 complainant. 4. 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." 4. Evidently, the aforesaid ratio is fully applicable to the facts of the instant case and, therefore, the appeal could have been allowed on this ground alone. However, I find an additional ground to allow the appeal that while dismissing the complaint for want of prosecution, the learned trial Magistrate was required to follow the procedure. It would be noticed that while dismissing the complaint for want of prosecution, provisions of section 256 of the Code of Criminal Procedure, 1973 (for short ''Code'') have not at all been kept in mind. 5. Section 256 of the Code specifically deals with nonappearance or death of the complainant, which reads as under: "256. It would be noticed that while dismissing the complaint for want of prosecution, provisions of section 256 of the Code of Criminal Procedure, 1973 (for short ''Code'') have not at all been kept in mind. 5. Section 256 of the Code specifically deals with nonappearance or death of the complainant, which reads as under: "256. Non-appearance or death of complainant.- (1) If the summons has been issued on complaint, and on the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall notwithstanding anything hereinbefore contained, acquit the accused, unless for some reasons he thinks it proper to adjourn the hearing of the case to some other day. Provided that where the complainant is represented by a pleader or by the officer conducting the prosecution or where the Magistrate is of opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case. (2) The provisions of sub-section (1) shall, so far as may be apply also to cases where the non-appearance of the complainant is due to his death." 6. This Court in N.K. Sharma vs. M/s Accord Plantations Pvt. Ltd. and another 2008 Latest HLJ 1249 while construing the provisions of Section 256 has observed that the same is applicable to even the complaints filed under the Act. However, the Court while exercising its discretion to acquit the accused in absence of the complainant has to act judiciously. Therefore, in absence of any order regarding acquittal of the accused, the order impugned herein, can not withstand the judicial scrutiny and is required to be set-aside. 7. Therefore, in view of the aforesaid discussion, I find merit in this appeal and the same is accordingly allowed and the impugned order dated 23.11.2016 passed by learned Additional Chief Judicial Magistrate, Court No.2, Shimla, in a Criminal Complaint No.549-111/14/2013 of 2016 filed by the appellant, whereby the complaint filed by the appellant under the Act, came to be dismissed for want of prosecution, is set-aside. The appellant is directed to appear before the learned Magistrate on 08.01.2018, on which date the learned Magistrate shall proceed to issue notice to the respondent. 8. The appellant is directed to appear before the learned Magistrate on 08.01.2018, on which date the learned Magistrate shall proceed to issue notice to the respondent. 8. However, before parting, it is made clear that in the event of the complainant not pursuing the complaint or absenting himself, the learned Magistrate shall be at liberty and free to pass such order as may be warranted under the law. 9. The petition stands disposed of in the aforesaid terms, so also the pending application, if any.