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2023 DIGILAW 1130 (RAJ)

Rajkumari Bhandari v. Ashok Kumar Jain

2023-05-17

ASHOK KUMAR JAIN

body2023
JUDGMENT : Ashok Kumar Jain, J. - Instant appeal after leave is preferred aggrieved from order dated 26.07.2022 in Regular Criminal Case No.619/2018 passed by learned Special Metropolitan Magistrate (N.I. Act, Cases) No.6, Jaipur Metropolitan-I, Jaipur whereby respondent-accused was acquitted from charge under Section 138 N.I. Act, when complainant-appellant and her counsel remained absent and matter was not prosecuted further. 2. Learned counsel for the appellant while relying upon V.K. Bhat v. G. Ravi Kishore & Ors. reported in (2016) 13 SCC 243 and K.B. Vedamurthy v. Laxven Chits Pvt. Ltd., reported in (2020) 5 KCCR 914 submitted that against dismissal of complaint under Section 256 Cr.P.C. leave to appeal is maintainable and only remedy lies with appellant-complainant is to file a leave to appeal before Hon'ble court. Further, it is contended that appellant is a senior citizen and she is suffering from ailments for which medical documents were filed to justify the reasons of absence of complainant-appellant. She further submitted that on almost all occasions counsel for appellant was present but no effective proceedings were conducted by learned trial court due to other engagements but one occasion when counsel for appellant failed to appear at a particular time then all of sudden, the matter was called and was dismissed by learned trial court. She further submitted that on disclosure of sufficient reason, if petition is not restored then irreparable loss would be suffered by appellant, as the matter pertains to dishonour of two cheques for Rs. 45 Lakhs. She further submitted that in future they would take care that unnecessary adjournments may not be sought by them. 3. Aforesaid contentions were opposed by learned counsel for the respondent on the ground that the order-sheets clearly indicated that complainant was not appearing for evidence and on last few occasions as neither complainant nor her counsel remained present so as to conduct the prosecution before learned trial court. He further submitted that criminal complaint case was pending for several years and appellant was deliberately delaying the same. But after affording sufficient opportunities, if complaint was dismissed then it cannot be said that learned trial court had committed any error in dismissing the aforesaid for want of prosecution. He further submitted that no sufficient reason was shown for absence on 26.07.2022 and prior to that, therefore, this appeal is liable to be dismissed with heavy cost. 4. But after affording sufficient opportunities, if complaint was dismissed then it cannot be said that learned trial court had committed any error in dismissing the aforesaid for want of prosecution. He further submitted that no sufficient reason was shown for absence on 26.07.2022 and prior to that, therefore, this appeal is liable to be dismissed with heavy cost. 4. Heard learned counsels for the appellant and respondent. 5. Perused the material available on record along with case file. Also perused the judgments of Hon'ble Apex Court and other Hon'ble High Courts. 6. Learned counsel for the appellant firstly relied upon the judgment in the case of V.K. Bhat v. G. Ravi Kishore & Ors. (supra) wherein Hon'ble Supreme Court held that dismissal of complaint for none appearance of complainant amounts to acquittal as contemplated in Section 256 of Cr.P.C. Similarly, in the case of K.B. Vedamurthy v. Laxven Chits Pvt. Ltd. (supra) the Karnataka High Court while relying upon V.K. Bhat case (supra) have permitted complainant to approach under Section 378(4) Cr.P.C. against dismissal of complaint. 7. Aforesaid two judgments were submitted to buttress arguments that against dismissal of complaint under Section 256 Cr.P.C. leave to appeal under Section 378(4) Cr.P.C. is maintainable. Herein, after filing of this leave to appeal, leave was already granted on 01.11.2022, therefore, these two judgments have got no relevance as of now because no one has objected that remedy under Section 378(4) Cr.P.C. is not available. 8. Upon delving into the merits, it is quite clear that learned trial court on 26.07.2022 had dismissed complaint in absence of complainant and her lawyers. Aforesaid order-sheet clearly indicated that learned trial court has observed that appellant-complainant or her counsel remained absent wherefore the matter was not progressing. When we consider proceeding prior to 26.07.2022, then the complaint was filed on 23.06.2017 and cognizance was taken on 03.10.2017. Thereafter, respondent did not appear despite service of bailable warrant and was produced after arrest on 29.10.2018 and on that very day plea was also recorded by trial court since then matter was fixed for cross-examination of complainant by accused. After almost 24 dates an application for appointment of commission for recording evidence of complainant was dismissed on 03.01.2022 though learned trial court had concluded at the time of dismissal that nowhere, it is indicated that complainant was unable to move as per medical advice. After almost 24 dates an application for appointment of commission for recording evidence of complainant was dismissed on 03.01.2022 though learned trial court had concluded at the time of dismissal that nowhere, it is indicated that complainant was unable to move as per medical advice. Though, the order was passed, we are not aware about the fact if this order was challenged or not. 9. The provision of commission for examination on witnesses is provided under Part B of Chapter XXIII of Cr.P.C. from Sections 284 to 288 which provides for procedure to be adopted by trial court Section 284 of Code prescribed that when it appears that examination of any witness is necessary to meet the ends of justice and attendance of such witness cannot be procured without an amount of delay, expense or inconvenience under the circumstances of facts, the court may issue a commission under the provisions of this chapter. Aforesaid provision was inserted only to address the problems as faced during course of trial. 10. Herein, after dismissal of application on 03.01.2022, the matter was fixed for 03.02.2022 but due to COVID no proceedings were conducted and matter was fixed for 01.04.2022 wherein learned counsel for the complainant remained present where after adjourned to 24.05.2022 and on that very day also counsel for appellant remained present before the court. The proceedings of 25.04.2022 clearly indicated that on that day it was intimated to the court that complainant was ill but learned trial court had observed that no medical document is filed to support the contention and ultimately matter was fixed for further appropriate orders on 26.07.2022 wherein the complaint was dismissed. 11. Learned counsel for the appellant while relying upon judgment of Hon'ble Supreme Court in the case of Mohd. Azeem v. A. Venkatesh & Ors. reported in (2002) 7 SCC 726 wherein it was observed that learned Magistrate and the High Court have adopted a strict and unjust attitude, resulting in failure of justice as acquittal of accused only for absence of complainant on one day and refusing to restore complaint when sufficient cause for absence was shown by complainant. Similarly, in the case of Manjit Kaur v. State of Punjab & Ors. in Criminal Misc. Similarly, in the case of Manjit Kaur v. State of Punjab & Ors. in Criminal Misc. No.38652-M of 1999 (O and M) it was held by the Punjab and Haryana High Court that one singular default in appearance on part of complainant was not sufficient to dismiss the complaint. Another judgment relied upon by learned counsel for the appellant is Brijeshkumar Kirtikumar Mehta v. State of Gujarat & Ors. reported in 2014 SCC Online Guj 2042 wherein reliance is placed on Mohd. Azeem (supra) and complaint was restored. 12. Having considered entirety of facts, we can definitely say that appellant-complainant had failed to appear on multiple occasions which might be due to her illness or any other reason. 13. Learned counsel for the complainant remained present on previous two occasions, the observations of trial court that complainant or her counsel remained absent in last several proceedings was not according to record. Herein, the matter is commercial in nature wherein cheque of value Rs. 45 Lakhs was involved, therefore, to meet ends of justice in case wherein present appellant-complainant is a senior citizen and also records are available to justify her medical condition, I am of considered view this appeal deserves to be allowed subject to payment of cost of Rs. 5,000/- to the respondent. 14. Herein, it is also required that the appellant-complainant must be provided only two opportunities to conclude her evidence but a reasonable time to dispose of the petition is also required in the matter. 15. Hence, present appeal aggrieved from order dated 26.07.2022 in Criminal Case No.619/2018 passed by learned Special Metropolitan Magistrate (N.I. Act, Cases) No.6, Jaipur Metropolitan-I, is hereby allowed and impugned order dated 26.07.2022 is set aside. The criminal case is remanded back to learned trial court with direction to restore same on original number and to conclude the trial within a period of four months after affording two opportunities to appellant-complainant to conclude her evidence. It is expected that appellant will conclude her evidence latest by 10.07.2023, the parties are directed to appear before learned trial court on 01.06.2023 at 8:30 am. 16. The appeal is disposed of on aforesaid terms. Misc. application, if any, stands disposed of. 17. Office is directed to do the needful at earliest so as to return the record of trial court.