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2017 DIGILAW 950 (HP)

Ranjana Arnold v. Rajeev Sharma

2017-08-18

SANDEEP SHARMA

body2017
JUDGMENT Sandeep Sharma, J. (Oral)—By way of instant appeal filed under section 378(4) of the Code of Criminal Procedure, 1973 challenge has been laid to the impugned order dated 03.06.2015, passed by the learned Chief Judicial Magistrate, Solan, District Solan, H.P., in complaint No.423/3/2014, whereby complaint having been filed by the appellant under section 138 of the Negotiable Instruments Act, came to be dismissed in default under section 256 of Cr.P.C., 1973 2. Briefly stated facts as emerge from the record are that the complainant preferred complaint under section 138 of the Negotiable Instruments Act (hereinafter referred to as the Act) against the respondent, alleging therein that he had provided friendly loan to the respondent on his asking. Respondent with a view to discharge his liability issued a cheque bearing No.616808, dated 2.12.2013, amounting to Rs. 4,80,000/- drawn on Himachal Gramin Bank, Branch, Solan, H.P in favour of the complainant. However, fact remains that aforesaid cheque on presentation was dishonoured, as a result of which, complainant was compelled to initiate proceedings under Section 138 of the Act, in the court of learned Chief Judicial Magistrate, Solan, District Solan, H.P. 3. It also emerge from the pleadings that aforesaid complaint having been filed by the complainant came to be listed before the court concerned on 24.04.2015 for evidence of the complainant witnesses, however, the witnesses could not be examined on the said date i.e. 24.04.2015, as such, matter was ordered to be adjourned for 03.06.2015. Since neither complainant nor his counsel presented himself before the court below on 03.06.2015, learned court below dismissed the complaint having been filed by the complainant under Section 256 Cr.P.C., 1973 Learned court below while dismissing the complaint concluded that the complainant is not interested in pursuing the complaint, otherwise he would have shown sufficient cause for his absence through his counsel or otherwise. In the aforesaid background, appellant approached this Court praying therein for restoration of his complaint filed under Section 138 of the Act, after setting aside the impugned order dated 3.6.2015 passed by the learned Chief Judicial Magistrate, Solan, District Solan, H.P. 4. Learned counsel representing the appellant while referring to the grounds of appeal contended that since counsel appearing on behalf of the complainant had wrongly noted down the next date of the case as 30.06.2015 instead of 3.6.2015, none appeared on behalf of the complainant. Learned counsel representing the appellant while referring to the grounds of appeal contended that since counsel appearing on behalf of the complainant had wrongly noted down the next date of the case as 30.06.2015 instead of 3.6.2015, none appeared on behalf of the complainant. Learned counsel further contended that otherwise also record suggests that only one opportunity was granted to the complainant to produce evidence. 5. This Court after having carefully perused the pleadings viz-a-viz impugned order passed by the learned court below, sees substantial force in the arguments of learned counsel for the appellant that at least one opportunity should have been afforded by the court below by issuing notice to the complainant before proceeding to dismiss the complaint of the complainant under section 256 of Cr.P.C., 1973 It is an admitted case of the parties that complaint having been filed by the complainant was listed before the court below on 24.04.2015 for the first time, when learned court below was pleased to fix date for examining the witnesses of the complainant. It is also not in dispute that on 24.04.2015 complainant put in appearance before the court below and sought further time to produce his witnesses. Perusal of Annexure A-2 i.e. extract of diary maintained by the learned counsel representing the complainant before the court below, suggests that matter was listed before the Court below on 24.04.2015 and thereafter counsel inadvertently noted the date as 30.06.2015 as next date of hearing, whereas court had adjourned the matter for 3rd June, 2015. 6. This Court, after having heard the parties and perused the record, sees substantial force in the arguments of learned counsel representing the appellant that irreparable loss would be caused to the complainant in case the complaint having been filed by the complainant under Section 138 of the Act, is not decided on merits and the same is dismissed for non prosecution. 7. Consequently, in view of above, the impugned order dated 3.6.2015, passed by learned Chief Judicial Magistrate, Solan in complaint No.423/3/2014 is quashed and set-aside and complaint having been filed by the complainant under Section 138 on the Act, is ordered to be restored to its original number with the further direction to the learned court below to decide the matter afresh in accordance with law. However, it is made clear that aforesaid order passed by this Court is subject to the payment of cost amounting to Rs. 10,000/- payable to the respondent within a period of two weeks from today. 8. The parties through their respective counsel are directed to appear before the learned court below on 5th September, 2017, on which date, learned trial Court shall fix date for examination of the complainant witnesses. Needless to say, no uncalled for adjournment would be taken by the parties to the lis so that case at hand is decided expeditiously by the learned trial Court. The record of the learned trial Court be sent back forthwith to enable the court below to proceed further in terms of the order passed by this Court. 9. With the aforesaid observations, present appeal stands disposed of alongwith pending application(s), if any.