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2018 DIGILAW 1617 (HP)

Payal Gangta v. Vivek Justa

2018-09-07

TARLOK SINGH CHAUHAN

body2018
JUDGMENT Tarlok Singh Chauhan, J. - The instant revision petition is preferred by the petitioner- complainant against the order passed by the learned Additional Chief Judicial Magistrate, Kasauli, District Solan, H.P. whereby the complaint filed by the her was ordered to be dismissed for want of prosecution vide order dated 23.04.2018. 2. Brief facts of the case are that, on 01.11.2017, the petitioner filed a complaint under Section 138 of the Negotiable Instruments Act, 1881 (for short N.I. Act) for dishonour of cheque amounting to Rs. 2,50,000/-. 3. The case was initially listed on 22.11.2017 for office report and on the said date notice for presence of the attorney of the complainant was issued for 15.01.2018. On 15.01.2018, the attorney of the petitioner could not appear and consequentially the matter was adjourned to 17.02.2018 when again notice was issued to the attorney of the complainant to appear before the Court on 23.04.2018, but once again he could not appear and accordingly the complaint was ordered to be dismissed for want of prosecution. 4. It is contended by learned counsel for the petitioner that on both the aforesaid occasions, the attorney of the petitioner/complainant could not appear as on the earlier occasion he had gone to Delhi to represent State of Himachal Pradesh in Ranji Trophy Cricket Tournament and thereafter when the case was listed on subsequent date he had gone to Bombay once again represent the State in the Ranji Trophy Cricket Tournament. It is only when he came back, he learnt that the case has been dismissed for want of prosecution. I have heard learned counsel for the parties and have gone through the records of the case. 5. It would be noticed that on 23.04.2018, learned Magistrate passed two different orders, which read as under:- "23.04.2014 Present:- None General Power of attorney Sh. Nikhil Gangta of complainant duly served. None appeared. Be called again. Sd/- (Yajuvender Singh) Addl. Chief Judicial Magistrate Kasauli Taken up again. 23.04.2014 Present:- None Case called repeated since morning. It is already 3:30 P.M. Cause list stands exhausted. None appeared on behalf of complainant. Hence, complaint is dismissed for want of prosecution. File, after its due completion be consigned to record room. Sd/- (Yajuvender Singh) Addl. Chief Judicial Magistrate Kasauli" 6. Chief Judicial Magistrate Kasauli Taken up again. 23.04.2014 Present:- None Case called repeated since morning. It is already 3:30 P.M. Cause list stands exhausted. None appeared on behalf of complainant. Hence, complaint is dismissed for want of prosecution. File, after its due completion be consigned to record room. Sd/- (Yajuvender Singh) Addl. Chief Judicial Magistrate Kasauli" 6. Now, the moot question is whether the complaint could have been dismissed for want of prosecution, evidently the petitioner was never issued notice in this case and the notice of appearance was only issued to General Power of Attorney. 7. That apart, the learned Magistrate should not have adopted a hyper technical and pedantic approach by ordering the dismissal of the complaint for default. 8. It has to be borne in mind that normally no party would desist or stop from pursuing a complaint involving dishonour of cheque till proved otherwise. That apart, it is always in the interest that the cases should be adjudicated on merits. In my opinion, the learned trial Magistrate has adopted a very strict and unjust attitude resulting in failure of justice. 9. There is yet another reason why the order impugned herein cannot withstand judicial scrutiny and the same is that the learned Magistrate while dismissing the complaint for default has not borne in mind the provisions of Section 256 of the Cr.P.C. (for short the Code), which 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 nonappearance of the complainant is due to his death." 10. (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." 10. This Court in N.K. Sharma vs. M/s Accord Plantations Pvt. Ltd. and another , (2008) 2 LatestHLJ 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 now withstand the judicial scrutiny and is required to be set-aside. 11. Therefore, in view of the aforesaid discussion, I find merit in this revision petition and the same is accordingly allowed and the impugned order dated 23.04.2018, passed by learned Additional Chief Judicial Magistrate, Kasauli, District Solan, H.P. in case No. 128/3 of 2017, titled as Miss Payal Gangta vs. Vivek Justa, is set-aside. 12. The petitioner is directed to appear before the learned trial Magistrate on 17.09.2018. 13. However, before parting, it is made clear that in the event of the complainant not pursuing the complaint or absenting herself, the learned Magistrate shall be at liberty and free to pass such order as may be warranted under the law. 14. The petition stands disposed of in the aforesaid terms. Copy dasti.