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2023 DIGILAW 291 (HP)

H. P. State Co-Operative Bank v. Ravi Kumar

2023-05-22

JYOTSNA REWAL DUA

body2023
JUDGMENT : Jyotsna Rewal Dua, J. The appellant was the complainant in the proceedings initiated by it under Section 138 of the Negotiable Instruments Act, 1881 (in short ‘N.I. Act’). The complaint was dismissed by the learned Trial Court vide order dated 10.12.2021 for want of prosecution. Aggrieved, the complainant has preferred the instant appeal. 2. I have heard learned counsel for the parties and considered the case record. 3. The appellant’s case is that it was in the process of adducing its evidence at the time of passing of the impugned order. The appellant had already examined its Senior Manager-Sh. Kiran Kumar as CW-1 on 16.11.2019. The matter was fixed before the learned Trial Court on 10.12.2021, on which date, neither the complainant nor its counsel attended the hearing. Hence, the complaint was dismissed for want of prosecution. 4. Learned counsel for the appellant stated that the statement of main witness of the complainant had already been recorded on 16.11.2019. Only formal witnesses remained to be examined. The complainant was under the impression that formal witnesses could be examined in the matter without complainant’s authorized representative remaining present in the Court on the next date, i.e. 10.12.2021. It is for this bonafide reason that the authorized representative of the complainant did not attend the hearing on 10.12.2021. Learned counsel for the appellant further submitted that right from the institution of the complaint in the year 2012, there has not been any default on behalf of the complainant in remaining present in the Court in accordance with law. Accordingly, prayer was made for setting aside the impugned order dated12.2021. Learned counsel for the respondent defended the impugned order. 5. I have perused zimni orders passed by the learned Trial Court in the proceedings initiated by the appellant under Section 138 of the N.I. Act (produced during hearing of the case by learned counsel for the appellant). Prima facie, it appears that the complainant, through its authorized representative, had been attending hearings of the complaint in accordance with law. The complainant does not appear to be a habitual defaulter. The order sheets produced by the appellant also reflect that it had examined its main witness-Senior Manager as CW-1 on 16.11.2019. Prima facie, it appears that the complainant, through its authorized representative, had been attending hearings of the complaint in accordance with law. The complainant does not appear to be a habitual defaulter. The order sheets produced by the appellant also reflect that it had examined its main witness-Senior Manager as CW-1 on 16.11.2019. The explanation given by learned counsel for the appellant for absence of the complainant on 10.12.2021 under these circumstances is plausible one that since according to the appellant-complainant, only formal witnesses remained to be examined by the complainant, therefore, the hearing of the case on 10.12.2021 was not attended by its authorized representative. In the background of the submissions made by learned counsel for the appellant, it would be appropriate to refer to the decision relied upon by the appellant in Latest HLJ 2022 (HP)(2) 1472 (Satvinder Singh Padda V/s Virender Kumar), wherein it was held as under:- “7. Section 256 CrPC provides discretion to the Magistrate either to acquit the accused or to adjourn the case for some other day, if he thinks it proper. Proviso to this Section also empowers the Magistrate to dispense with the complainant from his personal attendance if it is found not necessary and to proceed with the case. Also, when the complainant is represented by a pleader or by the officer conducting the prosecution, the Magistrate may proceed with the case in absence of the complainant. 8. When the Magistrate, in a summons case, dismisses the complaint and acquits the accused due to absence of complainant on the date of hearing, it becomes final and it cannot be restored in view of Section 362 CrPC, which reads as under: “362. Court not to alter judgment. - Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.” 16. It is true that Magistrate has a discretion to dismiss the complaint for default resulting into acquittal of the accused. However, in present case, for the discussions made hereinafter, I am inclined to set aside the impugned order. 17. It is true that Magistrate has a discretion to dismiss the complaint for default resulting into acquittal of the accused. However, in present case, for the discussions made hereinafter, I am inclined to set aside the impugned order. 17. Keeping in view the effect of dismissal in default, the Magistrate is 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 day.” Hon’ble Apex Court in (2023) 4 SCC 326 (BLS Infrastructure Limited Versus Rajwant Singh and others) after considering provisions of Section 256 of the Code held that where Magistrate is satisfied that personal attendance of the complainant is not necessary, he can dispense with attendance of the complainant and proceed with the case. Such a situation may arise where complainant’s/prosecution’s evidence has been recorded and to decide the case on merits, complainant’s presence is not necessary. Following paras are relevant to the context:- “11. Having noticed the rival submissions, before we proceed further, it would be useful to notice the provisions of Section 256 of the Code, which are reproduced below: “256. Non-appearance or death of complainant.- (1) If the summons has been issued on complaint, and on the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall, notwithstanding anything hereinbefore contained, acquit the accused, unless for some reason he thinks it proper to adjourn the hearing of the case to some other day: Provided that where the complainant is represented by a pleader or by the officer conducting the prosecution or where the Magistrate is of opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case. (2) The provisions of sub-section (1) shall, so far as may be, apply also to cases where the non-appearance of the complainant is due to his death.” 12. A plain reading of the proviso to sub-section (1) of Section 256 would indicate that where the Magistrate is satisfied that the personal attendance of the complainant is not necessary, he can dispense with the attendance of the complainant and proceed with the case. A plain reading of the proviso to sub-section (1) of Section 256 would indicate that where the Magistrate is satisfied that the personal attendance of the complainant is not necessary, he can dispense with the attendance of the complainant and proceed with the case. Such a situation may arise where complainant’s/ prosecution’s evidence has been recorded and to decide the case on merits, complainant’s presence is not necessary.” Taking into consideration the above legal position, the explanation offered by the appellant and also taking holistic view of the facts and circumstances of the case, it will be in the interest of justice to set aside the impugned order dated 10.12.2021. Ordered accordingly. The parties, through their learned counsel, are directed to appear before the learned Trial Court on 15.06.2023. The appeal stands disposed of in the above terms, so also the pending miscellaneous application(s), if any.