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Himachal Pradesh High Court · body

2021 DIGILAW 181 (HP)

H. P. State Co-operative Bank Ltd. v. Hira Lal

2021-03-26

VIVEK SINGH THAKUR

body2021
JUDGMENT : VIVEK SINGH THAKUR, J. 1. Present appeal has been preferred against the impugned order dated 23.02.2019, passed by learned Judicial Magistrate, Court No.3, Shimla in Case RBT No. 560-3 of 18/16, titled as H.P. State Co-operative Bank Ltd. vs. Sh. Hira Lal, whereby complaint under Section 138 of Negotiable Instrument Act (hereinafter referred to as “N.I. Act”), filed by the appellant/complainant against Respondent Hira Lal has been dismissed in default for want of presence of complainant. 2. Impugned order is re-produced herein as under:- “23.2.2019 Present:- None for the complainant. Accused in person with Sh. Hitesh Kumar, Advocate. On the previous date of hearing counsel for the complainant appeared but today none appeared. It is 11.30 AM. Be awaited, called after some respite. -sd- (Vishal Kaundal) Judicial Magistrate Ist Class, Court No.3, Shimla, H.P. Taken up after respite 23.2.2019 Present:- As above. Case called again but none has appeared on behalf of complainant. It is 12.30 P.M. Be called after lunch -sd- (Vishal Kaundal) Judicial Magistrate Ist Class, No.3, Shimla, H.P. Taken up after respite 23.2.2019 Present:- As above. It is 4.30 PM. The cause list for the day stand exhausted. Neither the complainant nor any counsel appeared on his behalf. As such, the present complaint is dismissed in default for want of complainant. File after its due completion be consigned to the record room. -sd- (Vishal Kaundal) Judicial Magistrate Ist Class, No.3, Shimla, H.P.” 3. It is submitted by learned counsel for the appellant that after recording the preliminary evidence of the complainant, learned Judicial Magistrate, Court No.7, had taken cognizance against the respondent vide order dated 29.06.2016 and thereafter, case was fixed for 29.07.2016 for service of the respondent-accused and later on, the case was transferred from Court No.7 to Court No.3 on 22.05.2018. It is submitted by learned counsel for the appellant that after recording the preliminary evidence of the complainant, learned Judicial Magistrate, Court No.7, had taken cognizance against the respondent vide order dated 29.06.2016 and thereafter, case was fixed for 29.07.2016 for service of the respondent-accused and later on, the case was transferred from Court No.7 to Court No.3 on 22.05.2018. In Court No.3, case was listed for service on 23.02.2019, but according to the learned counsel for the appellant, the said date was not in the knowledge of the appellant and, therefore, no one had put in appearance on behalf of the appellant before the Magistrate in Court No.3, as neither the complainant-Bank nor the Advocate had received any notice regarding listing of the case on that day in Court No.3 after transfer of the case and for that reason, competent Officer of the appellant/complainant-Bank had not asked the Advocate to appear on behalf of the appellant/complainant-Bank on that date before Court No.3 and ultimately, vide order dated 23.02.2019, as reproduced hereinabove, complaint of the appellant/complainant-Bank was dismissed. 4. The impact of dismissal of complaint in default and options available with Magistrate under provisions of Section 143 of the N.I. Act read with Section 256 of Code of Criminal Procedure, have been discussed in detail in judgment of this Court, being relied upon by the learned counsel for the appellant, passed in Bal Krishan Rawat vs. Pyare Lal Nepta, reported in 2018 (Supp)Shim. LC 95. 5. I am of the considered view that the ratio of the law, discussed in Bal Krishan Rawat’s case supra, is also applicable in the present case. In the present case also, in view the impact of dismissal in default, the Magistrate was supposed to exercise his discretion with care and caution clearly mentioning in the order that there was no reason for him to think it proper to adjourn the hearing of the case to some other date. As a matter of fact, transfer of the case to another court was not notified to the complainant as well as his counsel and, therefore, learned Magistrate was not justified in dismissing the complaint in default for single absence of the complainant coupled with failure of his counsel to attend the date. 6. As a matter of fact, transfer of the case to another court was not notified to the complainant as well as his counsel and, therefore, learned Magistrate was not justified in dismissing the complaint in default for single absence of the complainant coupled with failure of his counsel to attend the date. 6. In the impugned order, there is no finding of the Magistrate that complainant was not pursuing the complaint honestly and diligently and there is no reference to previous history, if any, with regard to conduct on the part of complainant causing unnecessary delay on account of adjournments sought on its behalf or for want of presence of its representative in the court. There is only reference of absence of complainant or its representatives on the date since morning till post lunch session. Therefore, acquittal of the accused, without adjudicating the case on merit, for non-appearance of the complainant or its representative, who were sincerely pursuing its remedy, is improper. As in normal circumstances, no complainant will be disinterested in pursuing its complaint without any reasons. The Magistrate should have exercised his discretion to adjourn the case for subsequent date and/or to proceed further, for which on the day of service presence of complainant was not necessary. 7. In view of the above facts, circumstances and discussion, I am of the view that there is merit in the appeal and it deserves to be allowed. Accordingly, appeal is allowed and impugned order dated 23.02.2019, passed by learned Judicial Magistrate 1st Class, Court No.3, Shimla in Criminal Case No. 560-3 of 18/2016, is set aside and complaint before learned Judicial Magistrate 1st Class, Court No.3, Shimla, is ordered to be restored to its original number and directed to be decided in accordance with law, as expeditiously as possible. Parties are directed to appear before the Magistrate on 22.04.2021. Needless to say that findings hereinabove, are to be confined to the disposal of the present appeal and shall have no bearing on the merits of the case. No order as to cost.