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2019 DIGILAW 230 (MP)

Laxmi Traders v. Sajjad Ali

2019-03-14

VISHNU PRATAP SINGH CHAUHAN

body2019
ORDER 1. The applicant has filed this criminal revision under section 397 read with section 401 of the Code of Criminal Procedure, 1973 being aggrieved by the order dated 12.8.2016 passed in Criminal Complaint No. 39/2015 by Judicial Magistrate First Class, Jabalpur whereby learned trial Court has dismissed the criminal complaint on account of non-appearance of the applicant under the provisions of section 256 of CrPC. 2. The facts giving rising to this revision, in short, are that the applicant is a running firm styled and named as M/s. Laxmi Traders and its proprietor Smt. MulaBai filed a complaint against the respondent for the offence punishable under Section 138 of Negotiable Instruments Act alleging therein that the cheque issued by the respondent to get rid of legally enforcible debts got dishonoured while presenting the same in the bank. The trial Court registered a complaint as Criminal Complaint No. 39/2015 against the respondent and issued a notice to the respondent for his appearance. On 12.8.2016 learned trial Court found that neither applicant appeared before the Court nor submitted process and requisite fees for issuance of process against the respondent, therefore, the trial Court dismissed the complaint on both counts; firstly, on account of absence of applicant/complainant and secondly, for non-prosecution of the complaint by the applicant. The applicant, being aggrieved by that impugned order, has preferred this revision on the ground that the applicant was totally dependent upon his counsel and due to mistake of counsel, the complaint got dismissed and the applicant should not be penalized for that, therefore, prays to set aside the impugned order directing the trial Court to restore the complaint case in its original number for further proceeding. 3. Learned counsel for the respondent submits that the counsel for the applicant is not responsible. The applicant, after registration of the complaint, has not paid any heed to communicate with counsel, nor the applicant appeared before the trial Court to proceed the complaint further. Thus, learned trial Court did not commit any error in dismissing the complaint under the provisions of section 256 of CrPC, therefore, prays for dismissal of the revision. 4. Heard learned counsel for both the parties and perused the record of Complaint Case No. 39/2015. 5. Thus, learned trial Court did not commit any error in dismissing the complaint under the provisions of section 256 of CrPC, therefore, prays for dismissal of the revision. 4. Heard learned counsel for both the parties and perused the record of Complaint Case No. 39/2015. 5. After perusal of the record, it is apparent that on the date of presentation of the complaint, the applicant did not appear and it was only the Advocate who presented the complaint against the respondent. Learned trial Court, on the same day, vide order dated 3.2.2015 registered the complaint under section 138 of Negotiable Instruments Act. Proprietor of the applicant firm Smt. MulaBai filed affidavit under order 18 rule 4 of CPC along with the complaint. The submission of learned counsel for the applicant is that the applicant paid sufficient amount to the Advocate appeared on its behalf before the trial Court, but the Advocate has not submitted the process fee and requisite fee for issuance of notice to the respondent. No doubt, complaint was filed by the Advocate in absence of any representative of the applicant firm. 6. After perusal of the impugned order dated 12.8.2016, learned trial Court has dismissed the complaint on two grounds; firstly; none is present on behalf of the applicant and secondly, the applicant is not paying PF in spite of repeated orders passed by the trial Court. After perusal of the record of the Court below, i.e., Criminal Complaint No. 39/2015, complaint was registered on 3.2.2015 and the case was posted for appearance of the respondent who was accused therein. As per provisions of section 256, if summon has been issued on the complaint, and on the day fixed for appearance of the accused if applicant remains absent, then the Court may dismiss the complaint. No doubt, complainant has not paid any heed to prosecute his complaint filed against the respondent and also not paying PF as ordered by the learned trial Court, however, this Court is of the view that complainant should be given one more opportunity in the interest of justice. Complainant should not be punished on the fault of his counsel. 7. Accordingly, this revision is allowed. The impugned order dated 16.8.2017 passed by the trial Court is hereby set side. Complainant should not be punished on the fault of his counsel. 7. Accordingly, this revision is allowed. The impugned order dated 16.8.2017 passed by the trial Court is hereby set side. The applicant is directed to remain present before the trial Court on 9.4.2019 and the trial Court shall restore the complaint on its original number. After his appearance, the applicant shall pay requisite PF within three days for issuance of notice to the respondent. If he fails to do the same and did not appear before the trial Court, the trial Court may proceed accordingly.