Punjab-Haryana High Court
Sunrise Immigration Consultants (P) ... vs Sh.Jagdish Singh Thakur & Anr on 14 August, 2012
Author: Naresh Kumar Sanghi
Bench: Naresh Kumar Sanghi
Criminal Misc. No.M-33620 of 2010 (O&M) ..1..
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Criminal Misc. No.M-33620 of 2010 (O&M)
Date of Decision: 14 August, 2012
Sunrise Immigration Consultants (P) Ltd.
...Petitioner
Versus
Sh.Jagdish Singh Thakur & Anr.
...Respondents
CORAM: HON'BLE MR. JUSTICE NARESH KUMAR SANGHI
Present: Mr.Amit Singh, Advocate, for the petitioner.
***
Naresh Kumar Sanghi, J.
Prayer in this petition is for quashing of the order dated 17.04.2010 passed by the learned Judicial Magistrate Ist Class, Chandigarh, in Criminal Complaint No.579 dated 14.11.2005, whereby the complaint instituted by the petitioner-complainant was dismissed for want of prosecution.
The brief facts of the case are that on 12.11.2005, the petitioner filed a Criminal Complaint No.579 dated 14.11.2005 before the learned Chief Judicial Magistrate, Chandigarh, for prosecution of respondent Nos.1 and 2 for the offence punishable under Section 138 read with Section 142 of the Negotiable Instrument Act (hereinafter referred to as "the Act"). Vide order dated 07.07.2006, the respondents were ordered to be summoned to face trial for the commission of offence punishable under Section 138 of the Act. After appearance of the respondents, the case was posted for the complainant's evidence on 17.04.2010 before the learned trial court when the following orders were passed:-
Criminal Misc. No.M-33620 of 2010 (O&M) ..2..
"Present: None for the complainant.
Accused on bail.
None has come present on behalf of the complainant in spite of being repeatedly calling the case since morning. It is already 10.30 a.m. Case be called again at 12.30 p.m. Sd/JMIC/17.04.2010 Present: None for the complainant.
Accused on bail.
Case again called at 12.30 p.m but none has come present on behalf of the complainant. As such, case be called again after lunch.
Sd/JMIC/17.04.2010 Present: None for the complainant.
Accused on bail.
Case again called after lunch but none has come present on behalf of the complainant. As such, the present complaint is dismissed in default for want of prosecution. Bail bonds and surety bonds stand discharged. File be consigned to the record room.
Pronounced on : 17.04.2010 Sd/-
Judicial Magistrate Ist Class,
Chandigarh."
The above said order is under challenge before this Court.
Learned counsel for the petitioner submits that the petitioner has regularly been appearing before the learned trial court on each and every date of hearing. He further submits that from 17.03.2010, the case was adjourned to 17.05.2010 and the same date was noted down on the brief of the learned counsel representing the petitioner. On 17.05.2010, when the case was not shown in the cause list for the day, enquiries were made and it was found that the Criminal Misc. No.M-33620 of 2010 (O&M) ..3..
case was taken up on 17.04.2010 and the same had been dismissed in default, therefore, he has prayed for setting aside the order dated 17.04.2010 and for restoration of the complaint to its original number before the learned court below.
I have heard learned counsel for the petitioner and perused the material available on record.
The present petition has been filed invoking the inherent jurisdiction of this Court enshrined in Section 482, Cr.P.C. Section 256, Cr.P.C deals with the situation where the complainant fails to appear which is as follows:
"256. Non-appearance or death of complainant-(1) If the summons has been issued on complaint and on that 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 my 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."
Perusal of Section 256, Cr.P.C clearly prescribes that if in a complaint case the summons has been issued and on the day Criminal Misc. No.M-33620 of 2010 (O&M) ..4..
appointed for the appearance of the accused, or any day subsequent thereto which the hearing may be adjourned, the complainant does not appear, the Magistrate shall acquit the accused unless for some reasons he thinks proper to adjourn hearing of the case to some other day, therefore, the dismissal of the complaint for want of prosecution means that the respondents/accused were acquitted in the said complaint case. It is apposite to mention here that the summoning order was passed in the year 2006 and thereafter, the respondents/accused had put in appearance in the said case before the learned court below and the said fact is fortified from the impugned order itself where the presence of the respondents have been recorded. Dismissal of the complaint tantamounts to acquittal of respondents/accused and in that eventuality, the impugned order could be challenged by way of criminal complaint only in terms of Section 378, Cr.P.C. It is settled proposition of law that once a particular remedy has been prescribed under the law, in that eventuality without taking recourse to such remedy, the petition under Section 482, Cr.P.C cannot be filed. In other words, it can be held that the provisions contained in Section 482, Cr.P.C are not substitute for the remedy specifically prescribed in the Criminal Procedure Code. In the case in hand, the petitioner without taking recourse to file an appeal, approached this Court by filing a petition under Section 482, Cr.P.C for quashing of the impugned order. In H.P.Agro Industry Corporation Ltd. vs. M.P.S.Chawla, (1997) 2 Crimes 591, Hon'ble Himachal Pradesh High Court held that there was no denying that the dismissal of the complaint in default under Section Criminal Misc. No.M-33620 of 2010 (O&M) ..5..
256, Cr.P.C entails the acquittal of the accused. Once an accused has been acquitted of the offence, the law provides a remedy by way of an appeal against the acquittal under Section 378(4) of the Criminal Procedure Code.
The argument raised by learned counsel for the petitioner/complainant that when the case was taken up on 17.03.2010 it was adjourned to 17.05.2010, does not appear to be correct. Had the case been adjourned to 17.05.2010, in that eventuality, there was no occasion for the respondents/accused to appear before the learned trial court on 17.04.2010. When the case was taken up, presence of the respondent/accused had been specifically mentioned in the impugned order as "the accused on bail". The said presence was recorded thrice on 17.04.2010 because before its dismissal, the complaint case was called three times. It appears that after dismissal of the complaint, the petitioner became wiser and tried to project that the learned trial court had adjourned the case to 17.05.2010 and as such, he could not appear on this adjourned date.
The complaint was filed in the year 2005 and the summoning order was issued in the year 2006 and thereafter, the respondents/accused had been appearing before the learned trial court. In such a scenario, the petitioner/complainant cannot submit that since he had been appearing before the learned court below, therefore, the complaint could not be dismissed in default. Learned counsel has placed reliance on the judgments of this Court in Jitender Bajaj vs. State (U.T.Chandigarh) and another, 2005 Criminal Misc. No.M-33620 of 2010 (O&M) ..6..
Criminal Law Journal 3136; Om Parkash vs. M/s Golden Forest India Ltd and others, 2008(4)R.C.R. (Criminal) 445; Punjab State Civil Supplies Corporatioin Ltd. vs. Mangat Rai, 2002(4) R.C.R. (Criminal) 458; Dilawar Singh vs. Pankaj Joshi and another, 2008(1) Crimes 654; M/s Parasol Laboratories (I) Pvt. Ltd. vs. Unknown person and another, 2009(4) R.C.R.(Criminal) 615; and of Hon'ble Delhi High Court in Manisha Trading Pvt. Ltd. vs. State and Others, 2001(4) R.C.R.(Criminal) 381; are footings on different facts and as such, are not applicable to the facts and circumstances of the case.
For the reasons recorded above, this Court does not find any perversity, illegality or infirmity in the order passed by the learned trial court and as such, the present petition is hereby dismissed.
August 14, 2012 (Naresh Kumar Sanghi) seema Judge