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2017 DIGILAW 631 (UTT)

CHARANJEET SINGH v. SHAKUNTALA DEVI

2017-11-28

LOK PAL SINGH

body2017
JUDGMENT Hon'ble Lok Pal Singh, J. This appeal has been preferred against the order dated 13.01.2015 passed by Special Judicial Magistrate- III, Dehradun in complaint case no.1050 of 2013 Charanjeet Singh vs. Smt. Shakuntala Devi, whereby the complaint filed by the appellant has been dismissed in default. 2. Brief facts of the case are that the appellant filed a complaint against the respondent under Section 138 of Negotiable Instruments Act, 1881 (for short, N.I. Act), which was registered as Criminal Case No.10520 of 2013. Thereafter, the evidence was recorded before the trial court and on the basis of above complaint and statements, the trial court took cognizance in the matter and issued summons to the respondent. However, despite summons being issued to the respondent, he did not appear before the trial court, as such, the trial court issued non-bailable warrants against the respondent and fixed the case for appearance of the respondent on 13.1.2015. On the date fixed i.e. on 13.01.2015, case was called out, but as neither the complainant was present, nor any application for exemption of his presence, was moved by him, the trial court passed order dated 13.01.2015 and dismissed the complaint in nonprosecution. However, the trial court in its order did not mention that the respondent accused is acquitted. For convenience, impugned order dated 13.01.2015 is reproduced hereunder: “13-01-2015 i=koyh is'k gqbZ oknh 4-30 rd mifLFkr ughaA dksbZ gktjh ekQh dk izkFkZuk i= Hkh ugha fn;k x;k gSA oknh dh vksj ls Hkh dksbZ mifLFkr ughaA okn ---- vneiSjoh oknh esa [kafMr fd;k tkrk gSA ” 3. Feeling aggrieved by the order dated 13.01.2015, this appeal has been preferred by the complainant. 4. Before going any further, it would be relevant to discuss Section 256 of Cr.P.C., which reads as under: “256. Non- appearance or death of complainant. Feeling aggrieved by the order dated 13.01.2015, this appeal has been preferred by the complainant. 4. Before going any further, it would be relevant to discuss Section 256 of Cr.P.C., 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 reason 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 nonappearance of the complainant is due to his death." 5. From a perusal of the impugned order, it would reveal that the trial court has dismissed the complaint in non-prosecution but no specific order regarding acquittal of the respondent has been passed by the trial court. Order sheet of the trial court reveals that it was the single default of the complaint in non-appearing before the trial court. In a case of singular default in appearance on the part of the complainant and when specific order of acquittal has not been passed by the trial court, the restoration application would be maintainable on the behest of the complainant, but it appears that instead of filing the restoration application before the trial court, the complainant has preferred the present appeal and vide order dated 22.11.2017, this Court has admitted the appeal for hearing. 6. It is the contention of learned counsel for the appellant that since the complaint has been dismissed in non-prosecution it would amount to acquittal of the respondent. This argument of learned counsel is not acceptable, as simply an order regarding dismissal of complaint in non-prosecution has been passed by the trial court and no specific order in respect of acquittal of the respondent has been passed. 7. The Hon'ble Apex Court in the case of Mohd. This argument of learned counsel is not acceptable, as simply an order regarding dismissal of complaint in non-prosecution has been passed by the trial court and no specific order in respect of acquittal of the respondent has been passed. 7. The Hon'ble Apex Court in the case of Mohd. Azeem vs. A. Venkatesh and another, (2002) 7 SCC 726 , has held as under: “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 (sicabsence) on one single day. The cause shown bythe 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. 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 complaint on one day and refusing to restore the complaint when sufficient cause for the absence was shown by the complaint. 5. The impugned orders dated 22-06-2001 of the Metropolitan Magistrate and dated 24-7-2001 of the High Court respectively, are set aside. The complaint is restored and learned Magistrate is directed to proceed with the trial of the case after issuance of formal notices to both the parties of the next date to be fixed in the case. The learned counsel appearing for the parties are directed to inform the parties to appear before the Court of Metropolitan Magistrate on or before 9.9.2002 to ascertain the date fixed by the trial Judge for the case." 8. In view of the above proposition of law, it is held that if the complaint is dismissed for one singular default in appearance on the part of the complainant, a restoration application would be maintainable. In view of the above proposition of law, it is held that if the complaint is dismissed for one singular default in appearance on the part of the complainant, a restoration application would be maintainable. As such, in the present case also, restoration application is maintainable to recall the order dated 13.5.2015, but since appeal has been preferred by the appellant and has also been admitted for hearing, direct the appellant to move restoration/recall application before the trial court would be a futile exercise. As such, this appeal is allowed. Impugned order dated 13.01.2015 passed by Special Judicial Magistrate-III, Dehradun in complaint case no.1050 of 2013 Charanjeet Singh vs. Smt. Shakuntalam Devi, is hereby set aside. Complaint is restored to its original number and learned Magistrate is directed to proceed with the trial of the case in accordance with law. Parties to appear before the trial court on 18.12.2017.