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Madhya Pradesh High Court · body

2022 DIGILAW 86 (MP)

Anuradha Agrawal v. Mahehdra Gupta

2022-01-13

G.S.AHLUWALIA

body2022
JUDGMENT 1. This application under Section 378 (4) of Cr.P.C. has been filed against the order dated 4/5/2016 passed by the JMFC, Gwalior in case No.4189/2013, by which the complaint filed by the applicant under Section 138 of the Negotiable Instruments Act was dismissed for want of prosecution. 2. Challenging the order passed by the Court below, it is submitted by the counsel for the applicant that the Court below failed to see that the complainant had appeared before the Trial Court on earlier occasion, but her evidence was not recorded and under these circumstances, if she could not appear on 4/5/2016, then the Court below should not have dismissed the complaint for want of prosecution. It is further submitted that in case if the complaint is restored to its original file, then the complainant shall appear on the first date which shall be fixed for recording of her evidence. 3. Heard learned counsel for the applicant. 4. The applicant has filed copies of the order-sheets of the Trial Court, according to which, by order dated 15/4/2014 the substance of accusation was read over to the respondent. On 16/5/2014 the applicant filed her affidavit under Section 145 of Negotiable Instruments Act and the case was fixed for 25/6/2014 for her cross examination. On 25/6/2014 the Presiding Officer was on leave and accordingly, the case was adjourned to 28/7/2014. On 28/7/2014 the applicant was present before the Trial Court, but since the Trial Court was busy in recording evidence in other cases, therefore, the case was adjourned to 19/8/2014. On 19/8/2014 the applicant could not appear and the case was adjourned to 22/9/2014. On 22/9/2014 the respondent himself prayed for time to pay the cheque amount and accordingly, the case was adjourned to 27/10/2014. On 27/10/2014 the respondent again sought time to pay the cheque amount and accordingly, the case was adjourned to 20/11/2014. On 20/11/2014 the applicant was present, but the counsel for the respondent sought time for cross examination of the complainant as well as for payment of money. Accordingly, the case was adjourned to 12/12/2014. On 12/12/2014, 8/1/2015, 24/1/2015 the applicant could not appear and her presence was exempted. On 10/2/2015 the Presiding Judge was on leave and accordingly, the case was fixed on 26/2/2015. On 26/2/2015, 21/4/2015, 14/5/2015 the applicant was present, but her evidence was not recorded at the request of counsel for the parties. Accordingly, the case was adjourned to 12/12/2014. On 12/12/2014, 8/1/2015, 24/1/2015 the applicant could not appear and her presence was exempted. On 10/2/2015 the Presiding Judge was on leave and accordingly, the case was fixed on 26/2/2015. On 26/2/2015, 21/4/2015, 14/5/2015 the applicant was present, but her evidence was not recorded at the request of counsel for the parties. Thereafter, on 10/7/2015 the applicant as well as the respondent were not present and accordingly, the application filed by the respondent under Section 317 of Cr.P.C. was allowed. However, the prayer for adjournment made by the applicant was allowed on payment of cost of Rs.300/- and the case was fixed on 12/8/2015 and on 12/8/2015 also the applicant could not appear as she is suffering from cancer and had gone to Bombay for her treatment, but the prayer for adjournment was accepted on payment of cost of Rs.500/-. On 10/9/2015 the Presiding Officer was on leave and the case was fixed for 9/10/2015. On 9/10/2015 the applicant was present and she was partially cross examined and the respondent raised an objection regarding territorial jurisdiction of the Trial Court. Thereafter, the case was fixed for 5/11/2015 for further cross examination of the respondent. On 5/11/2015 the applicant as well as the respondent were not present and accordingly, an application under Section 317 of Cr.P.C. was filed by the respondent which was accepted. Thereafter, the applicant also filed an affidavit of her witness Vishnu Kumar Agrawal under Section 145 of Cr.P.C. and it was pleaded that since the applicant is medically sick, therefore, one more time may be granted to appear for cross examination, however, the time was granted on payment of cost of Rs.500/- and the case was fixed for 22/12/2015. On 22/12/2015 and 20/1/2016 the applicant could not appear and the case was fixed for 22/2/2016. On 22/2/2016 the applicant appeared and her cross examination was completed and the case was fixed for recording of evidence of complainant's witnesses. On 7/4/2016 the case was adjourned at the request of the complainant to examine other witnesses. The case was taken up on 4/5/2016 and on the said date it appears that the applicant as well as her counsel could not appear and accordingly, the complaint was dismissed for want of prosecution. On 7/4/2016 the case was adjourned at the request of the complainant to examine other witnesses. The case was taken up on 4/5/2016 and on the said date it appears that the applicant as well as her counsel could not appear and accordingly, the complaint was dismissed for want of prosecution. It is submitted by the counsel for the applicant that the applicant is religiously prosecuting her complaint filed under Section 138 of the Negotiable Instruments Act. She was also examined and cross examined. If the complainant was trying to prolong the proceedings, then instead of dismissing the complaint for want of prosecution, the Court below should have closed the right of the complainant to examine her witnesses. 5. It is further submitted that upto 7/4/2016 the case was pending in the Court of ACJM, Gwalior, but on 4/5/2016 it was transferred to the Court of JMFC, Gwalior and since the applicant was not aware of the transfer of the case, therefore, neither she nor her counsel could appear. 6. Considered the submissions. 7. This Court has already considered the different proceedings which had taken place before the Trial Court. It is clear that on certain occasions the complainant was present, but her evidence was not recorded for one reason or the other, but ultimately her cross examination was over on 22/2/2016. If the Trial Court was of the view that the complainant is deliberately trying to prolong the proceedings, then instead of dismissing the complaint, should have closed her right to examine further witnesses and should have fixed the case for recording of accused statement. Furthermore, the JMFC, Gwalior should not have dismissed the complaint for want of prosecution on the first day after transfer of the case to his Court. 8. Under these circumstances, this Court is of the considered opinion that the Court below has committed a material illegality by dismissing the complaint for want of prosecution by order dated 4/5/2016. 9. Accordingly, order dated 4/5/2016 passed by the JMFC, Gwalior in case No.4189/2013 is hereby set aside. The parties are directed to appear before the Trial Court on 7th March, 2022. In case if the respondent fails to appear before the Trial Court on the said date, then the Trial Court shall issue warrant of arrest against him. 10. With aforesaid observations, the application is allowed.