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2018 DIGILAW 3161 (PNJ)

Gulshan Arora v. Gian Chand

2018-07-31

HARI PAL VERMA

body2018
JUDGMENT Mr.Hari Pal Verma, J (O&M).- CRM-22024-2017 Prayer in this application filed under Section 5 of the Limitation Act is for condonation of delay of 7 days in filing the present application for leave to appeal under Section 378(4) CrPC 2. For the reasons stated in the application, the same is allowed. Delay of 7 days in filing the present application for leave to appeal under Section 378(4) CrPC is condoned. Criminal Misc. No.A-1489-MA of 2017: 3. This is an application filed under Section 378(4) CrPC read with Section 482 CrPC seeking permission to grant leave to appeal against order dated 28.04.2017 passed by learned Judicial Magistrate Ist Class, Kharar, whereby the complaint filed by the applicant against the respondent under Section 138 of the Negotiable Instruments Act, 1881 (for short, “the Act”) was dismissed in default for want of prosecution. For the reasons stated in the application, the same is allowed. Leave to appeal granted. Office is directed to assign an appeal number to the case. 4. Learned counsel for the appellant submits that the appellant had filed a complaint against the respondent-accused under Section 138 of the Act, as the respondent-accused had issued a cheque bearing No.961265 dated 02.09.2014 for an amount of Rs.7 lacs drawn on Punjab and Sind Bank, SCO 12-13, Zirakpur in favour of the applicant-complainant, in order to discharge his monetary and legally enforceable liability. However, on presentation of the said cheque in the bank, the same bounced and was returned with the remarks “insufficient funds”. Accordingly, the appellant-complainant filed the complaint in question against the respondent-accused. However, the said complaint was dismissed for non-prosecution vide order dated 28.04.2017 passed by Judicial Magistrate Ist Class, Kharar. 5. Learned counsel for the appellant argues that there was no mala fide on the part of the appellant for not appearing before the trial Court. In fact when the case was taken up on the previous date of hearing i.e. 12.04.2017, his counsel had noted the wrong next date of hearing i.e. 28.05.2017 instead of 28.04.2017 and since he could not appear on 28.04.2017, his complaint was dismissed for non-prosecution vide order dated 28.04.2017. Learned counsel further argues that the trial Court should have afforded one more opportunity to the applicant instead of dismissing the complaint for non-prosecution. Learned counsel further argues that the trial Court should have afforded one more opportunity to the applicant instead of dismissing the complaint for non-prosecution. She has further argued that despite having issued non-bailable warrants against the respondent-accused, he had not put in appearance before the Court, which speaks about the conduct of the accused, as he intended to delay the proceedings in one way or the other. 6. I have heard learned counsel for the appellant and perused the impugned order with due care and circumspection. 7. It is not in dispute that the respondent-accused had issued the cheque in question in favour of the appellant-complainant. The argument put forward by learned counsel for the appellant is that it is on account of noting the wrong date, the counsel could not appear before the trial Court on the relevant date of hearing and resultantly, the complaint in question was dismissed for non-prosecution. The reason shown by the appellant for his non-appearance before the trial Court seems to be quite genuine, as by not putting in appearance, the appellant-complainant would not get any benefit, particularly when non-bailable warrants were issued against the respondent-accused. Rather it would unnecessarily delay the trial. Therefore, this Court finds that the complainant-appellant deserves another opportunity to pursue his complaint, which was otherwise not adjudicated on merits. Reference may be made to a judgment of Himachal Pradesh High Court in the case of M/s Bhagra Steels Sales Pvt. Ltd. Vs. Sunil Mohan [2010(2) Him.L.R. 913] : 2010(2) Him LR 913, wherein it was held that when presence of the complainant, on the relevant date, was not necessary, the complaint should not have been dismissed in default. Moreover, proceedings under Section 138 of the Act are more or less civil in nature, even though the same may have a criminal bearing. 8. Accordingly, the present appeal is allowed and order dated 28.04.2017 passed by Judicial Magistrate Ist Class, Kharar is set aside. Consequently, the complaint filed by the applicant under Section 138 of the Act is restored back to its original number for its decision on merits. The trial Court is directed to proceed with the matter from the stage where it was dismissed, in accordance with law. 9. Consequently, the complaint filed by the applicant under Section 138 of the Act is restored back to its original number for its decision on merits. The trial Court is directed to proceed with the matter from the stage where it was dismissed, in accordance with law. 9. The present appeal has been disposed of, at this stage, without issuing any notice to the respondent-accused for the reason that in case notice is issued to the respondent, it will further delay the proceedings.