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2023 DIGILAW 329 (UTT)

Bhanwar Singh v. State of Uttarakhand

2023-05-22

PANKAJ PUROHIT

body2023
JUDGMENT : By means of this C482 Application the applicant has challenged the order dated 08.08.2013 passed by Special Judicial Magistrate, IIIrd Dehradun, in Criminal Complaint Case No.469 of 2013 (Old No.595 of 2012) Bhanwar Singh Vs. Sayyad Zafar Abbas Zaidi), whereby the complaint moved by the applicant has been dismissed in default. Further the judgment and order dated 28.08.2014 has been passed by the VIth Additional Sessions Judge, Dehradun in Criminal Revision No.267 of 2013, Bhanwar Singh Vs. Sayyad Zafar Abbas Zaidi and Another, whereby the order dated 08.08.2013 passed by the trial court was affirmed. 2. The case as unfolded by the applicant in this C482 Application is that on 27.03.2012 a criminal complaint under Section 138 of N.I. Act has been filed by the applicant against respondent no.2, which was registered as Criminal Case No.595 of 2012 Bhanwar Singh vs. Sayyad Zafar Abbas Zaidi in the court of Additional Chief Judicial Magistrate, Ist, Dehradun. During the course of proceedings of the criminal complaint, the statement was recorded by the applicant under Section 200 of Cr.P.C. by filing an affidavit before the learned trial court on 10.01.2013 but since the applicant was not intended to record any statement under Section 202 of Cr.P.C. before the trial court, the case was fixed for argument for summoning the accused. The case of the applicant is that vide order dated 10.06.2013 passed by the learned District Judge, Dehradun, this criminal case was transferred from the court of Additional Chief Judicial Magistrate, 1st Dehradun to the court of Special Judicial Magistrate, IIIrd Dehradun. No notice with regard to transfer of the case was sent either to the applicant or to the counsel for the applicant. Consequently, the applicant or his counsel could not appear before the learned trial court on 13.06.2013, 20.06.2013, 03.08.2013 and 08.08.2013. Finally on 08.08.2013 the case was dismissed in default. 3. The counsel for the applicant challenged the order of dismissal in default dated 08.08.2013 passed by the learned trial court before the court of learned VIth Additional Sessions Judge, Dehradun by filing a Criminal Revision No.267 of 2013, Bhanwar Singh vs. Sayyad Zafar Abbas Zaidi and Another but the learned VIth Additional Sessions Judge, Dehradun vide its judgment and order dated 28.04.2014 dismissed the revision on a technical ground that only remedy available to the applicant was to approach this Court under Section 378(4) of Cr.P.C. 4. Being aggrieved by the order dated 08.08.2013 passed by Special Judicial Magistrate, IIIrd Dehradun, in Criminal Case No.469 of 2013 (Old No.595 of 2012) Bhanwar Singh Vs. Sayyad Zafar Abbas Zaidi) and order dated 28.08.2014 passed by the VIth Additional Sessions Judge, Dehradun in Criminal Revision No.267 of 2013, Bhanwar Singh Vs. Sayyad Zafar Abbas Zaidi and Another”, the instant C482 application has been filed. 5. Heard learned counsel for the parties and perused the record of the case. 6. Notices were issued to respondent no.2 through C.J.M. vide this Court’s order dated 05.03.2020 but the same could not be served upon respondent no.2. As per the office report, it is reported that respondent no.2 was not residing in the given address. Since complaint has been dismissed for default at pre-summoning stage, this Court does not think the presence of respondent no.2 necessary at this stage for proper adjudication of the matter. Hence, this Court is proceeding to hear and decide the matter in the absence of respondent no.2. 7. From the impugned order dated 28.08.2014 passed by the learned VIth Additional Sessions Judge, Dehradun it is reflected that the learned VIth Additional Sessions Judge without going into the merits of the case dismissed the revision only on the ground that the only remedy available to the applicant is to file an appeal against acquittal under Section 378(4) of Cr.P.C. before this Court. Learned VIth Additional Sessions Judge relied upon the case of Pritam Prakash Arora vs. Uttarakhand State and Another, reported in 2012 (2) U.D. 383 . 8. The order passed by the learned VIth Additional Sessions Judge on 28.08.2014 dismissing the revision on the ground of alternative remedy is totally misconceived, hence it cannot be sustained. The judgment relied upon by the learned VIth Additional Sessions Judge is not applicable to the facts of the case. In Pritam Prakash Arora’s case (supra) the complaint was dismissed for default after the accused was summoned, while in the case in hand the complaint moved by the applicant has been dismissed in default at pre-summoning stage. The judgment relied upon by the learned VIth Additional Sessions Judge is not applicable to the facts of the case. In Pritam Prakash Arora’s case (supra) the complaint was dismissed for default after the accused was summoned, while in the case in hand the complaint moved by the applicant has been dismissed in default at pre-summoning stage. Therefore, the dismissal of complaint would not amount to the acquittal as envisaged under Section 256 of Cr.P.C. Rather dismissal of the complaint for non prosecution would amount a dismissal at presummoning stage under Section 203 of Cr.P.C. Thus, the case of Pritam Singh being contrary to the facts of the present case, the same was not applicable in the present case. There is yet another aspect of the matter if viewed in this angle, when the accused has yet not been even summoned under Section 204 Cr.P.C., where would be the occasion of his acquittal. The revisional court’s order passed by the learned VIth Additional Sessions Judge relying upon the said judgement cannot sustain and deserves to be set aside. 9. Now this Court has to see as to whether the matter be remanded to the VIth Additional Sessions Judge for passing the appropriate order or as to whether this Court in exercise of its inherent jurisdiction or power can decide the case itself. This is a matter where a complaint has been filed by the applicant in the year 2012 regarding dishonour of cheque for insufficient fund in the account of respondent no.2 and the same was dismissed for default in the year 2013 vide order dated 08.08.2013 passed by the learned trial court. It would not be proper to remand the case to learned VIth Additional Sessions Judge to decide the revision, at such a belated stage. 10. This Court is inclined to decide the case itself. From the perusal of the entire order-sheet of the Complaint Case No.469 of 2013 annexed by the applicant as Annexure No.2 to the C-482 Application, it is reflected that the complainant or the counsel has not been informed about the notice for transfer of the case from the court of Additional Chief Judicial Magistrate, Ist Dehradun to the court of Special Judicial Magistrate, IIIrd vide order dated 10.06.2013 passed by the District Judge, Dehradun, therefore, it cannot be said that the complainant remained absent due to his own fault. 11. 11. It is expected that the court below should inform the complainant regarding the transfer of the case from one court to other, in order to avoid such eventualities as had befallen upon the complainant in this case. Apart from this, it is reflected from the record that the complainant was not a chronic defaulter. He put in appearance before the learned trial court to pursue his complaint on most of the occasions when the court was available. The lis, involved in the case, is with regard to dishonour of two cheques amounting of Rs.65,000/- and 1,85,000/-. In these circumstances, it would be travesty of justice, if the applicant is prevented to get justice in this manner, where he was not at fault for his non-appearance on the date fixed i.e. 08.08.2013. 12. In view of the aforesaid discussion, the impugned order dated 28.08.2014 passed by the VIth Additional Sessions Judge, Dehradun is hereby quashed. The order dated 08.08.2013 passed by the Special Judicial Magistrate, IIIrd, Dehradun is hereby recalled and the complaint is restored to its original number in the file of Special Judicial Magistrate, IIIrd, Dehradun. The C482 Application is allowed, accordingly.