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2018 DIGILAW 1116 (HP)

Padam Singh Saini v. Megh Singh

2018-06-18

CHANDER BHUSAN BAROWALIA

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JUDGMENT : Chander Bhusan Barowalia, J. The present appeal is maintained by the appellant, under Section 378 of the Code of Criminal Procedure, for quashing and setting aside the impugned order dated 23.12.2015, passed by the Court of learned Judicial Magistrate 1st Class, Court No.III, Mandi, District Mandi, (H.P), in Criminal Complaint No.196/2015. 2. The key facts, giving rise to the present appeal are that the appellant/complainant (hereinafter referred to as the ‘complainant’) maintained the complaint, under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as ‘Act’) against the respondent/accused (hereinafter referred to as the ‘accused’). As per the complainant, on 10.10.2014, complainant presented a cheque, bearing No.159566, dated 17.9.2014, amounting Rs.1,00,000/-, drawn on State Bank of India, Branch Pandoh, District Mandi, H.P. The said cheque was presented and the same was dishonoured by the accused’s banker, vide memo, dated 10.10.2014 for the reason “Funds Insufficient”. Thereafter, the complainant served the accused through registered notice and demanded the cheque amount, which was duly served upon the accused, but the accused had neither replied nor had arranged for the payment of the said cheque and on his failure the complainant maintained the complaint before the learned Court below. The learned Court below issued notice for the service of accused on 23.12.2015, on the said date, the complainant was under the impression that the learned counsel will appear on his behalf, before the learned Court and could not appear, the learned counsel also not appeared before the learned Court below as and when the said case was called, as the learned counsel was busy in conducting the criminal trial before the learned lower Appellate Court and when appeared in the court regarding the said complaint and enquired about the case, then it come to know to the learned counsel that the learned Court below had dismissed the complaint of complainant, under Section 256 of the Code of Criminal Procedure and acquitted the accused, vide order dated 23.12.2015. 3. Learned counsel appearing on behalf of the appellant-complainant has argued that the impugned order passed by the learned Court below is unjust, unreasonable and liable to be set aside. On the other hand, learned counsel appearing on behalf of the accused-respondent has argued that as the appellant-complainant was unable to appear before the learned Court below and prays that the present appeal deserves to be dismissed. On the other hand, learned counsel appearing on behalf of the accused-respondent has argued that as the appellant-complainant was unable to appear before the learned Court below and prays that the present appeal deserves to be dismissed. He has further argued that there is no irregularity and illegality in the impugned judgment passed by the learned Court below. 4. To appreciate the arguments of learned counsel appearing on behalf of the parties, I have gone through the record in detail. 5. From the perusal of record, it is quite clear that the appellant-complainant could not appear before the learned Court below, as he was, under the impression that his counsel will appear before the learned Court below and it was only a formal date, however, his counsel also could not appear due to unavoidable circumstances. So, this Court comes to the conclusion that non-appearance of the appellant-complainant as well as his counsel was neither intentional nor willful, but was beyond their control. Accordingly, the impugned order dated 23.12.2015, passed by the learned Court below is required to be set aside and the case is remanded back to the learned Court below to meet the ends of justice. 6. Resultantly, the present appeal is allowed and the impugned order dated 23.12.2015 passed by the learned Court below is set aside and the complaint is remanded back to the learned Court below with a direction to dispose of the same, in accordance with law. Both the parties, through their learned counsel, are directed to put in appearance before the learned Court below on 26th July, 2018. 7. In view of the above, the present appeal is disposed of in the aforesaid terms with no order as to costs. Pending application (s), if any, shall also stands disposed of.