Research › Search › Judgment

Bombay High Court · body

2018 DIGILAW 1526 (BOM)

Employee''s State Insurance Corporation v. Manish Amrutlal Kakkad

2018-06-27

MANISH PITALE

body2018
JUDGMENT Manish Pitale, J.(Oral) - Rule. Rule is made returnable forthwith. The criminal writ petitions are heard finally at the stage of admission with the consent of the learned counsel for the parties. 2. These three writ petitions challenge identical orders dated 16.09.2016 and 17.09.2016 passed by the Court of Judicial Magistrate First Class (Special Court for trying cases under the Negotiable Instruments Act) Nagpur, hereinafter referred to as the trial Court. By the said orders, the trial Court has dismissed three complaints filed by the petitioner- Corporation against the respondents, in respect of dishonour of cheques issued by the respondents. It is the case of the petitioner-Corporation that the respondents are guilty of offence committed under Section 138 of the aforesaid Act. 3. The complaints filed by the petitioner-Corporation have been rejected by the impugned orders on the ground that the complainant had failed to appear for verification and that since sufficient opportunity was granted and yet there was nonappearance of the complainant or its counsel, the complaints deserved to be dismissed. On this basis, by exercising power under section 203 of the Code of Criminal Procedure, 1973 (Cr.P.C.), the trial Court has dismissed the complaints of the petitioner-Corporation. 4. In the writ petitions, it is pointed out on behalf of the respondent-Corporation that there had been transfer of the complaint proceedings from one Court to the other and that the follow up on the part of the petitioner-Corporation had not been up to the mark and this had resulted in nonappearance on behalf of the complainant (petitioner-Corporation) before the trial Court. It is pointed out that the default could not be said to be deliberate and that since the petitioner-Corporation has good case on merits, the impugned orders deserved to be set aside. 5. Smt. B.P. Maldhure, learned counsel appearing on behalf of the petitioner-Corporation, has relied on the contents of the writ petitions as also additional affidavit filed to explain in detail, the reasons why there was lack of representation on behalf of the petitioner-Corporation before the trial Court. It is contended that on merits, the petitioner-Corporation has an excellent case and that the cheques in question were issued by the respondents herein in discharge of statutory liability under the provisions of the Employees State Insurance Act, 1948. 6. On the other hand, Mr. Yogesh Nagpure, learned counsel appearing for the respondents in Criminal Writ Petition Nos. It is contended that on merits, the petitioner-Corporation has an excellent case and that the cheques in question were issued by the respondents herein in discharge of statutory liability under the provisions of the Employees State Insurance Act, 1948. 6. On the other hand, Mr. Yogesh Nagpure, learned counsel appearing for the respondents in Criminal Writ Petition Nos. 1164 of 2017 and 1165 of 2017, has pointed out that the order sheets pertaining to various dates on which the complaints were listed before the trial Court show that repeated and sufficient opportunities were granted to the petitioner-Corporation for verification and that since there was no representation on behalf of the petitioner-Corporation, the trial Court had no alternative but to dismiss the complaints. It was pointed out that the complaint cases were transferred only once in February-2015 and that the petitioner-Corporation was not justified in claiming that as the reason for the callousness on its part. It was pointed out that even for approaching this Court, the petitioner-Corporation had taken more than a year after the complaints were dismissed when the impugned orders were passed in September-2015. 7. None appeared on behalf of the respondent in Criminal Writ Petition No. 1163 of 2017, though served. 8. Having heard the counsel for the parties, a perusal of the identical impugned orders shows that the trial Court has purportedly exercised powers under section 203 of the Cr.P.C., 1973 to dismiss the complaints of the petitioner-Corporation. It has been recorded in the impugned orders that the complainant has not been appearing for verification and none had represented the complainant before the trial Court and therefore, the complaints were being dismissed. The record of the case indeed shows that there has been default on the part of the petitioner-Corporation in attending to the complaints before the trial Court. It is also on record that the complaint cases were transferred at least on one occasion from one Court to the other. In any case, the counsel representing the petitioner-Corporation and the concerned officer ought to have kept follow up and attended the complaint cases. In the writ petitions filed before this Court, the petitioner-Corporation has given details as to why it took more than about a year for the petitioner-Corporation to approach this Court for challenging the impugned orders. In any case, the counsel representing the petitioner-Corporation and the concerned officer ought to have kept follow up and attended the complaint cases. In the writ petitions filed before this Court, the petitioner-Corporation has given details as to why it took more than about a year for the petitioner-Corporation to approach this Court for challenging the impugned orders. It appears that the petitioner-Corporation did call for an explanation from its counsel and the Social Security Officer, who were looking after these complaint cases. It has come on record that there were different opinions given by the panel counsel as to the manner in which the impugned orders could be challenged and that the concerned Social Security Officer had already retired. 9. Taking an overall view of the matter, although it is evident that there has been some amount of casual approach on the part of the counsel and the concerned officer of the petitioner-Corporation in pursuing the said complaint cases, dismissal of the complaints, essentially in default, by the impugned orders does not further the ends of justice. It appears that the respondents had indeed issued the cheques in question, which were dishonoured. Since the petitioner-Corporation (Complainant) has claimed that the cheques were issued for meeting statutory liability, it would be appropriate and in the interest of justice that the complaints are decided on merits. 10. Hence, in the interest of justice, the writ petitions are allowed. The impugned orders are set aside. The petitioner-Corporation is relegated to the trial Court for the complaints to proceed from the stage at which they were, when the impugned orders were passed. It is made clear that the petitioner-Corporation shall pursue the complaint cases diligently and that there will not be any default on its part. It is made clear that this Court has not expressed any opinion on the merits of the complaints and that the trial Court can decide the complaints on its own merits at the earliest. The parties are directed to appear before the trial Court in all the three complaints on 16.07.2018. 11. As noted above, there has been some amount of casual approach on behalf of the petitioner-Corporation and hence, it shall ensure that the complaint cases filed under the aforesaid Act are attended to, properly by its officials and if there is any default, appropriate action may be taken against such officials. 11. As noted above, there has been some amount of casual approach on behalf of the petitioner-Corporation and hence, it shall ensure that the complaint cases filed under the aforesaid Act are attended to, properly by its officials and if there is any default, appropriate action may be taken against such officials. For the delay of more than one year in approaching this Court, the petitioner-Corporation is saddled with costs of Rs. 2,500/- per writ petition to be paid to the High Court Bar Association Library, Nagpur. 12. Rule is made absolute in the aforesaid terms with no order as to costs.