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2024 DIGILAW 45 (RAJ)

Punjab National Bank v. Ganpati Steel Furniture

2024-01-08

PRAVEER BHATNAGAR

body2024
JUDGMENT : Praveer Bhatnagar, J. The present criminal leave to appeal is being disposed off at the admission stage itself. 2. The appellant has preferred the criminal leave to appeal under Section 378(4) Cr.P.C. against the impugned order dated 01.04.2019 passed by the learned Special Judge (N.I. Act Cases) No.1, Jaipur Metropolitan, Jaipur in Criminal Case No.4741/2018, whereby, the complaint under section 138 of the N.I. Act was dismissed in default and respondent was acquitted from the charge under section 138 of the N.I. Act. 3. Learned counsel for the appellant submits that the impugned order has been passed due to non-appearance of the complainant and thereafter accused-respondent was acquitted from the above charge. He further submits that the order of learned trial court suffers from patent illegality. The present complaint was filed alongwith two other complaints as Case Nos. 4742/2018 & 4743/2018. He submits that all the aforesaid complaints including present complaint were transferred from the Court of Negotiable Instrument Act Cases No.8, Jaipur Metropolitan, Jaipur to the Court of Negotiable Instrument Act Cases No.1, Jaipur Metropolitan, Jaipur on 13.08.2018 and the next date was fixed for all the three cases as 16.01.2019. He submits that in Case Nos. 4742/2018 and 4743/2018 the next date was fixed as 17.05.2019 and counsel for the complainant noted the next date presuming in the present case also as 17.05.2019. 4. Learned counsel for the appellant further submits that on 17.05.2019 the counsel for the complainant appeared before the concerned Court and came to know that instead of 17.05.2019 the case was listed on 16.01.2019 and thereafter it was listed on 01.02.2019 & 01.03.2019, resulting in dismissal of the complaint on 01.04.2019. He submits that due to inadvertent reasons the date of hearing of the present complaint could not be noted and complainant noted the date of the case as 17.05.2019. He submits that there was no reason for willful absent for the counsel. He submits that the counsel in two other cases have regularly been appearing before the concerned Court and the matter is related to loan recovery of Bank, therefore, the leave to appeal application may be allowed and the learned trial court be directed to restore the complaint. 5. Learned counsel for the appellant relies upon the judgment of Hon'ble Apex Court in the matter of Mohd. Azeem v. Venkatesh & Ors. 5. Learned counsel for the appellant relies upon the judgment of Hon'ble Apex Court in the matter of Mohd. Azeem v. Venkatesh & Ors. : (2002) 7 SCC 726 and the judgments of this Court in the matter of Rama Devi v. Deepak Agarwal : 2009 (2) Cri.LR (Raj) 933 and Sushil Kumar Damani v. M/s. Sheveta Constructions Pvt. Ltd. & Ors. : 2012 (2) R.Cr.D. 342 (Raj.). 6. Heard learned counsel for the appellant and perused the impugned order as well as the certified copies of other complaints relating to Case Nos. 4742/2018 & 4743/2018. 7. From perusal of order-sheets of all the three cases, it is apparent that all the three complaints were filed in the same Court and thereafter they were transferred to Special Judge, N.I. Act Cases No.1, Jaipur Metropolitan, Jaipur and next date of hearing for two cases i.e. Case Nos.4742/2018 & 4743/2018 was fixed for 17.05.2019. The present criminal leave to appeal is preferred against the Case No.4741/2018. In all the three cases learned trial court took the cognizance on 12.03.2018 and accused was called through arrest warrant. 8. In the present case, the complaint was not listed alongwith other two complaints (Case Nos.4742/2018 & 4743/2018), thus, it is evident that due to inadvertent reasons and in presumption that all the three cases are listed for 17.05.2019, the presence of counsel for the complainant could not be marked before the learned trial court in Case No.4741/2018. The impugned order dated 01.04.2019 shows that the proceedings under section 138 of the N.I. Act were dismissed in default resulting into acquittal of the accused under section 138 of the N.I. Act. 9. Hon'ble Apex Court in the matter of Mohd. Azeem v. Venkatesh & Ors. : (2002) 7 SCC 726 vide judgment dated 16.08.2002 has opined that for absence of the complainant on one day after showing the sufficient cause refusing to restore the complaint by the High Court is unjust. Hon'ble Apex Court has also opined that the High Court has adopted a very strict and unjust attitude resulting in failure of justice. 10. In the matter of Rama Devi v. Deepak Agarwal : 2009 (2) Cri.LR (Raj) 933 the complaint was dismissed on the date of hearing due to absence of the counsel. It is held that the Magistrate acted in haste and should have given an opportunity to lead the evidence. 11. 10. In the matter of Rama Devi v. Deepak Agarwal : 2009 (2) Cri.LR (Raj) 933 the complaint was dismissed on the date of hearing due to absence of the counsel. It is held that the Magistrate acted in haste and should have given an opportunity to lead the evidence. 11. In the case of Sushil Kumar Damani v. M/s. Sheveta Constructions Pvt. Ltd. & Ors. : 2012 (2) R.Cr.D. 342 (Raj.) the High Court was of the view that in completing the examination in chief of the defence witness presence of complainant was not required. Hence dismissing the complaint on the ground of non-appearance of complainant and acquitting the accused was bad in law. 12. In the present case though the facts of the case are totally different from the facts of the cases cited by learned counsel for the complainant, however, it is apparent that due to wrong assumption that the other cases are listed on 17.05.2019 the counsel could not notice the different date fixed for the Case No.4741/2018. The copies of other two complaints clearly show that these cases were being simultaneously listed before the concerned Court till 10.07.2018. 13. In the present case, the mistake has occurred inadvertently and not willfully, therefore, the impugned order dated 01.04.2019 passed by learned Special Judge (N.I. Act Cases) No.1, Jaipur Metropolitan, Jaipur is set aside. The complaint is restored and learned Magistrate is directed to proceed with the trial of the case after issuance of notice to the accused-respondent. Learned counsel appearing for the complainant is directed to appear before the concerned court on or before 12.02.2024. Record of the case be sent forthwith.