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2021 DIGILAW 1127 (ALL)

Rajpal Singh v. State Of U. P.

2021-09-28

AJAI TYAGI

body2021
JUDGMENT : This appeal has been preferred against the impugned judgment and order of acquittal dated 05.10.2018 passed by Learned Additional Civil Judge (Senior Division) Court No. 3, Ghaziabad in Criminal Complaint Case No. 341 of 2017 (Rajpal Vs. Yograj), under Section 138 Negotiable Instrument Act, Police Station-Muradnagar, District-Ghaziabad by which respondent no. 2 Yograj Singh was acquitted under Section 256 Cr.P.C. 2. The brief facts giving rise to this appeal are that a complaint case was filed by appellant against respondent no. 2 Yograj Singh under Section 138 N.I. Act with the averments that accused Yograj received Rs. 14 lacs from the complainant in connection with his business and gave a cheque of Rs. 14 lacs dated 06.09.2014 for payment of amount taken from the complainant. Cheque was deposited in bank but it was dishonored. When complainant/appellant contacted the accused, he started making excuses and finally payment was not made to the complainant. Hence, he filed complaint case under Section 138 N.I. Act. 3. During the course of trial appellant/complainant Raj Pal remained absent and due to his absence, learned trial court acquitted the respondent no. 2/accused under Section 256 Cr.P.C. 4. Heard Shri Ravindra Pratap Singh, learned counsel for appellant, Shri Shyam Shanker Pandey, learned counsel for opposite party no. 2, Shri Rajendra Prasad learned A.G.A. for State. 5. Learned counsel for appellant submitted that 04.08.2018 date was fixed for hearing but on that date lawyers were on strike and the concerned court fixed the next date i.e. 01.09.2018 but information of this new date was not given to the appellant by his counsel and due to that reason appellant could not appear before the court and another next date 05.10.2018 was fixed by the court. Since the appellant could not know the previous date, the fixed date 05.10.2018 was also not in his knowledge, hence he could not appear in the court on 05.10.2018 and learned court dismissed the complaint and acquitted respondent no. 2 under Section 256 Cr.P.C. It is further submitted that in fact it was fault of the lawyer of the appellant and due to the mistake or carelessness of lawyer client should not be suffered. It is also submitted that on the said date 05.10.2018 accused/respondent no. 2 was also not present in the court. Hence there was sufficient reason with appellant for non appearance in the court on the fixed date. It is also submitted that on the said date 05.10.2018 accused/respondent no. 2 was also not present in the court. Hence there was sufficient reason with appellant for non appearance in the court on the fixed date. Hence appeal be allowed and impugned order be set aside. 6. Learned counsel for respondent no. 2 and learned A.G.A. submitted that appellant was continuously absent from the court. Court below had provided many opportunities to the applicant but he was not appeared. Court has passed impugned order legally, there is no infirmity in the impugned order and application be dismissed. 7. From the perusal of record, it is clear that appellant /complainant could not appear before the court below because he did not get any information of date fixed from his lawyer. So the appellant could not appear in court below due to the carelessness or mistake, as the case may be, of his lawyer who did not inform him the next date because lawyers were on strike. Litigant should not suffer for any mistake of his lawyer. So this court comes to the conclusion that non appearance of the appellant was neither intentional nor willful but was beyond his control. Accordingly impugned order dated 05.10.2018 passed by learned court below is required to be set aside and the case is remanded back to the learned court below to meet the ends of justice. 8. In the result, instant appeal is allowed and the impugned order dated 05.10.2018 passed by learned court below is set aside and the complaint is remanded back to the learned court below with a direction to dispose of the same in accordance with law. 9. Both the parties are directed to put in appearance before the learned court below on 25.10.2021. 10. In view of above the present appeal is disposed of in the aforesaid terms.