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2022 DIGILAW 37 (JK)

Classic Enterprises v. Gani Shyam

2022-02-11

RAJNESH OSWAL

body2022
JUDGMENT : Rajnesh Oswal, J.- CRMC No.60/2014 1. The present petition has been filed by the petitioner for quashing the order dated 18.11.2013 passed by the court of learned Sessions Judge, Jammu, whereby the acquittal appeal filed by the petitioner was dismissed and also for quashing order dated 20.08.2013 passed by the court of learned Special Mobile Magistrate (Passenger Tax and Shops Act) Jammu (hereinafter to be referred as the trial court), whereby the complaint under section 138 Negotiable Instruments Act (for short the Act) filed by the petitioner was dismissed for want of prosecution evidence. 2. It is stated that the petitioner had filed a complaint under section 138 of the Act against the respondent and the respondent sought number of opportunities to settle the dispute and had sought time to pay back the amount due to the petitioner. As the compromise was going on between the parties and the respondent had paid a sum of Rs. 10,000/- in the court, so the petitioner did not feel any need to produce any witness in support of the complaint. On 17.08.2013, when the matter was again taken up the learned trial court for the first time gave last and final opportunity to the petitioner to produce the witness and the matter was kept on 20.08.2013. On 20.08.2013, the petitioner along with his counsel appeared and requested the learned trial court to record the statement of the complainant/petitioner, but since the accused respondent herein was not present, therefore, the matter was passed over and the same was directed to be taken up for recording the statement of the petitioner after completion of all the criminal matters. Learned counsel for the petitioner along with the petitioner went to the court to get the statement of the petitioner recorded but instead the counsel for the petitioner was told that the complaint of the petitioner was dismissed in default as also for want of prosecution evidence. 3. Feeling aggrieved of order dated 20.08.2013, the petitioner filed an acquittal appeal before the Sessions Court Jammu, however, the learned Sessions Judge, Jammu vide order dated 18.11.2013 dismissed the appeal filed by the petitioner. 4. 3. Feeling aggrieved of order dated 20.08.2013, the petitioner filed an acquittal appeal before the Sessions Court Jammu, however, the learned Sessions Judge, Jammu vide order dated 18.11.2013 dismissed the appeal filed by the petitioner. 4. The petitioner being aggrieved of the orders passed by the learned trial court as well as learned Sessions Court, has filed the present petition for quashing both the orders on the ground that the reason for not producing the witness was that the compromise/negotiation was going on between the parties that is substantiated by the various court orders wherein the respondent himself stated that the matter was being settled between the parties and the respondent required some time to repay/reimburse the amount to the petitioner. Further the respondent has admitted his liability by paying an amount Rs. 10,000/- to the petitioner and had further sought time to repay back the amount to the petitioner. Therefore, the petitioner did not produce any witness in support of his complaint. 5. Mr. Ankesh Chandel, learned counsel for the petitioner has vehemently argued that the learned trial court has fallen in grave error of law while dismissing the complaint for non prosecution, particularly when the respondent had sought time to settle the matter and had even paid a sum of Rs. 10,000/- to the petitioner. He further submitted that the acquittal appeal filed by the petitioner was in fact wrongly filed as the same was required to be filed before this Court and further argued that the present petition is required to be treated as an appeal ignoring the judgment of Sessions Court. He placed reliance upon the judgment of the Full Bench of the Madras High Court in case, titled, K. Rajalingam vs. R Suganthalakshmi and others decided on 28.05.2020. 6. Per contra, Mr. Rajesh Kumar, learned counsel for the respondent did not raise any objection to the contention of the learned counsel for the petitioner that the present petition is required to be treated as an appeal, but he vehemently argued that the complainant/petitioner did not lead any evidence, as such, the learned trial court was well within its jurisdiction to dismiss the complaint in default and for want of prosecution evidence. 7. Heard and perused the record. 8. 7. Heard and perused the record. 8. The petitioner had filed an acquittal appeal against the order dated 20.08.2013 by virtue of which the complaint filed by the petitioner was dismissed in default and for want of prosecution evidence. 9. As per the mandate of section 417 Cr PC, the acquittal appeal was required to be filed before this Court and not before the court of Sessions, as such, this Court is of the considered view that the acquittal appeal filed by the petitioner before the Sessions Judge, Jammu was not maintainable and any order passed dismissing the said acquittal appeal is of no consequence and for all purposes, the same order is required to be ignored. So far as the instant petition is concerned, the same has been treated as petition under section 561-A Cr.P.C (482 Cr.P.C). As the learned counsel for the respondent has not joined the issue with the other side with regard to the contention of the counsel for the petitioner for treating the present petition as appeal and also taking into consideration the judgment of Full Bench of Madras High Court in K. Rajalingam vs. R Suganthalakshmi), the present petition is treated as appeal against the order passed by the learned trial court ignoring the judgment passed by learned Sessions Judge Jammu. 10. The perusal of the record reveals that vide order dated 25.10.2008, process was issued against the respondent. The respondent caused his appearance before the trial court and vide order dated 08.05.2010 the respondent sought opportunity for settling the dispute out of the court. Thereafter, on 05.10.2010, the respondent appeared before the trial court and submitted that he had already entered into a compromise with regard to other two cases with the complainant and sought time to settle the dispute in the instant complaint as well. Thereafter, on 25.10.2010, respondent sought time to make the payment. Similarly, on 09.12.2010, the accused/respondent sought time to make the payment. On 05.01.2011, the respondent paid a sum of Rs. 10,000/- to the complainant in the court and thereafter, on 01.03.2011, the respondent submitted before the learned Magistrate that the compromise has not been effected between the parties and the complainant was directed to produce the evidence. Again on 01.02.2012, the respondent appeared before the court and submitted that an attempt is being made to compromise the matter and thereafter matter was fixed for 11.02.2012. Again on 01.02.2012, the respondent appeared before the court and submitted that an attempt is being made to compromise the matter and thereafter matter was fixed for 11.02.2012. On 11.02.2012, the case was posted for 17.04.2012 for recording the statement of the complainant. On 17.04.2012, 12.06.2012, 25.08.2012, 20.10.2012, 29.10.2012, 29.12.12, 28.02.2013, 04.05.2013, 4.06.2013 and 17.08.2013, no witness was produced by the complainant and even the statement of the complainant was not recorded. On 17.08.2013, last opportunity was granted to the complainant to produce the evidence and on 20.08.2013, the complaint was dismissed for non prosecution and for want of evidence. From the record, it is evident that the respondent had made a payment of Rs. 10,000/- to the petitioner on 05.01.2011 and the respondent had been seeking opportunities for compromise time and again and had even made a payment of Rs. 10,000/- in the court to the petitioner. Though, in the acquittal appeals, the acquittal recorded by the trial court is not to be interfered lightly but so far as instant case is concerned, there has been no acquittal of the respondent on merits but only the complaint was dismissed for non prosecution and for want of prosecution evidence. From the record, it is evident that for solitary absence on 20.08.2013, the complaint was dismissed for non prosecution and while dismissing the complaint, the learned trial court has observed that for last four years, the case has been pending for recording the statement of the complainant as well as his witnesses. 11. It seems that the learned trial court has not gone through the minutes of the proceedings of the case as the respondent had been seeking opportunities time and again for settling the dispute amicably and it was not that for the last four years, the petitioner did not lead any evidence. As there is no acquittal of the respondent on merits but only for want of evidence due to absence of the petitioner, this Court is of the considered opinion that the order impugned is not sustainable in the eyes of law. 12. It is settled law that every attempt is required to be made to dispose of the lis on merits and in the instant case particularly when the respondent had himself sought number of opportunities for settling the dispute and had even made payment of Rs. 12. It is settled law that every attempt is required to be made to dispose of the lis on merits and in the instant case particularly when the respondent had himself sought number of opportunities for settling the dispute and had even made payment of Rs. 10,000/- in the court, the acquittal recorded by the learned trial court is not justified. As such, the present petition is allowed and the order dated 20.08.2013 is set aside. CRAA No.135/2010 & CRAA No.136/2010 13. In CRAA No. 135/2010, the appeal has been filed by the appellant against the order dated 27.09.2010 passed by the Special Mobile Magistrate (Passenger Tax and Shops Act) Jammu (hereinafter to be referred as the trial court) in complaint No. 22/2008, titled, M/s Classic Enterprises vs. Gani Shyam whereby the complaint under Section 138 of the Negotiable Instrument Act filed by the petitioner was dismissed for non prosecution and prayer has also been made for setting aside the same. 14. In CRAA No. 136/2010, the appeal has been filed by the appellant against the order dated 27.09.2010 passed by the Special Mobile Magistrate (Passenger Tax and Shops Act) Jammu (hereinafter to be referred as the trial court) in complaint No. 38/2008, titled, M/s Classic Enterprises vs. Gani Shyam whereby the complaint under Section 138 of the Negotiable Instrument Act filed by the petitioner was dismissed for non prosecution and prayer has also been made for setting aside the same. 15. In both theses appeals, common issues have been raised and even the learned trial court has taken both these complaints together and similar orders have been passed on each date and even orders impugned are also identical. Therefore, both these appeals are being decided by this common order. 16. It is stated that the appellant had filed three complaints against the respondent under section 138 of the Negotiable Instrument Act and all the three complaints were pending before the same court and in all the complaints same dates were being fixed. It is further stated that the respondent was negotiating with the appellant for settlement of all the three complaints and this fact is also evident from the orders of the trial court. It is further stated that the respondent was negotiating with the appellant for settlement of all the three complaints and this fact is also evident from the orders of the trial court. It is stated that on 27.09.2010, when the counsel caused his appearance in other case at 1.00 P.M, then the counsel came to know that the two complaints have been dismissed for non prosecution of the complainant/appellant. The counsel submitted before the learned trial court that the date given to the appellant in the complaint was 05.10.2010 but the learned trial court had already dismissed the two complaints whereas one of the complaints was still pending before the trial court and the same had been fixed for settlement/compromise. The appellant has impugned order dated 27.09.2010 on the following grounds: (a) That all the complaints including two complaints those were dismissed were listed in Lok Adalat held on 25.05.2010 for amicable settlement but two of them were segregated without the knowledge of the appellant. (b) That the respondent was not present on 27.09.2010, which shows that the accused/respondent was also not aware of the segregation of the two complaints and the Hon’ble Court passed the impugned order in haste and also without waiting for the counsel till 1.00 P.M. (c) That it is settled law that once the process has been issued in the complaint, then the court must try to dispose of the complaint on merits. 17. Mr. Ankesh Chandel, learned counsel appearing on behalf of appellant vehemently argued that the learned trial court has fallen in grave error of law while dismissing the said complaint particularly when the respondent herein himself sought time for settling the dispute amicably. 18. Mr. Rajesh Kumar, learned counsel appearing on behalf of respondent vehemently argued that the learned trial court has rightly dismissed the complaint because the appellant had not been causing appearance before the learned trial court. 19. Heard and perused the record. 20. A perusal of the record reveals that the learned trial court vide order dated 25.10.2008 had issued the process against the respondent and the respondent had caused his appearance before the learned trial court and the statement of the respondent was recorded under section 242 Cr.P.C on 19.03.2009 and the petitioner was directed to lead evidence. 20. A perusal of the record reveals that the learned trial court vide order dated 25.10.2008 had issued the process against the respondent and the respondent had caused his appearance before the learned trial court and the statement of the respondent was recorded under section 242 Cr.P.C on 19.03.2009 and the petitioner was directed to lead evidence. On 08.04.2010, both the parties were present and the accused sought time for compromise with the appellant and the file was posted for 08.05.2010 and on 08.05.2010 also, the similar submission was made by the respondent and the case was posted for 25.05.2010. On 25.05.2010 also, similar submission was made by the respondent and the case was posted for 27.07.2010. On 27.07.2010, 19.08.2010 and 22.09.2010, none had appeared on behalf of the parties. On 27.09.2010, the complaints were dismissed for non prosecution as neither the appellant nor the respondent was present. The learned trial court while recording of the acquittal has observed that the complainant despite repeated opportunities granted to him has not produced any witness in the complaint. It seems that the learned trial court has passed this orders impugned oblivious to the orders dated 08.04.2010, 08.05.2010 and 25.05.2010, when the respondent himself had sought time for out of the court settlement of the complaints. As there is no acquittal of the respondent on merits but only for want of evidence due to absence of the appellant, this Court is of the considered opinion that the order impugned is not sustainable in the eyes of law. It is settled law that every attempt is required to be made to dispose of the lis on merits and in the instant case, particularly when the respondent had himself sought number of opportunities for settling the dispute, the acquittal recorded by the learned trial court is not justified, as such, the both the orders dated 27.09.2010 passed in each of the complaints, are set aside. 21. The learned trial court is directed to dispose of all the three complaints as expeditiously as possible and no un-necessary adjournment shall be granted to the either of the parties. The parties are directed to appear before the trial court on 01.03.2022. 22. Original records of the complaints be sent to the trial court forthwith.