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2018 DIGILAW 654 (HP)

Ishwar Dutt Sharma v. Kameshwar Verma

2018-04-16

CHANDER BHUSAN BAROWALIA

body2018
JUDGMENT Chander Bhusan Barowalia, J —The present criminal appeal, under Section 378 of the Code of Criminal Procedure, is maintained by the appellant/complainant (hereinafter to be called as "the complainant") , against the order dated 23.02.2017, passed by learned Judicial Magistrate 1st Class, Court No. 5, Shimla, H.P. in complaint No. 279-3 of 2016, whereby the complaint, under Section 138 of the Negotiable Instruments Act (hereinafter to be called as "N.I. Act") filed by the complainant has been dismissed in default. 2. The key facts, giving rise to the present appeal are that the complainant filed a complainant against the respondent/accused (hereinafter to be called as "the accused") under Section 138 of the N.I. Act, wherein he alleged that in March, 2014, the accused approached to him to borrow a sum of Rs. 1,50, 000/-, since the accused was in dire need of money for expansion of his business. The complainant lent him a sum of Rs. 50, 000/- on 19.03.2014 and Rs. 1,00, 000/- in June, 2014 with the condition that the same will be returned back by the accused within few months. Though an amount of Rs. 40, 000/- has been paid to the complainant upto August, 2014, however for the balance amount of Rs. 1,10, 000/-, the accused issued a cheque, bearing No. 054224, dated 20.07.2016 drawn at Central Bank of India, Branch Parwanoo, District Solan, H.P. in favour of the complainant. When the said cheque was presented by the complainant for clearance with his banker i.e. State Bank of India, Branch at Sanjauli, Shimla-6 on 30.07.2016, the cheque was returned back to him alongwith memo of dishonour and with the endorsement "Account closed". Thereafter, the complainant issued a registered notice, dated 18.08.2016 to the accused. Despite notice the accused failed to make the payment to the complainant within the stipulated period of 15 days from the receipt of the notice. Resultantly, the complainant filed a complaint against the accused under Section 138 of N.I. Act before the learned trial Court and the summons were issued for the service to the accused on 23.02.2017, however on said date despite the matter has been called repeatedly, no one has put in appearance on behalf of the complainant, hence the complaint was dismissed in default. 3. I have heard the learned counsel for the parties and gone through the record carefully. 4. 3. I have heard the learned counsel for the parties and gone through the record carefully. 4. Learned counsel for the appellant has argued that the non-appearance on behalf of the complainant on the date fixed before the learned trial Court was due to unavoidable circumstance, as the complainant as well as his counsel were out of station and though the counsel of the complainant has instructed the other counsel to appear vice in the matter, but he could also not put his appearance and resultantly the impugned order was passed, which is unjust and to meet the ends of justice the same is required to be restored. 5. On the other hand, learned counsel for the respondent has argued that the complainant is not interested to pursue his case, as the same is without merits and, therefore, the order passed by the learned trial Court needs no interference. 6. In order to appreciate the rival contentions of the parties, I have gone through the record carefully. 7. It appears that on 23.02.2017 that complainant was out of station and so he could not appear before the Court and he remained under the impression that his counsel will appear in the case, however the learned counsel was to go to his native place and though he requested another counsel to appear in the matter vice, but due to unavoidable circumstances the vice counsel could also not appear. 8. It is apt to consider Section 256 of the Code of Criminal Procedure, 1973, 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 reason 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 non-appearance of the complainant is due to his death". (2) The provisions of sub-section (1) shall, so far as may be apply also to cases where the non-appearance of the complainant is due to his death". 9. In the present case, the learned trial Court has not taken into consideration whether on that date personal appearance of the complainant was required or not and passed the order in mechanical manner and in these circumstance, order dated 23.02.2017, passed by the learned trial Court cannot said to be just and reasoned and the same is required to be set aside. 10. Accordingly, the present appeal is allowed and order dated 23.02.2017, passed by the learned trial Court is set aside. Parties through their counsel are directed to appear before the learned trial Court on 2nd May, 2018. 11. In view of the above discussion, the present appeal, so also pending application(s) , if any, shall stand(s) disposed of.