Himachal Pradesh High Court
Bihru Kalan vs Ranjeet Singh Rathore on 25 March, 2022
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA ON THE 25th DAY OF March, 2022 BEFORE .
HON'BLE MR. JUSTICE TARLOK SINGH CHAUHAN CRIMINAL APPEAL NO.358/2021 BETWEEN:
AJAY KUMAR S/O SH. KAMAL DEV, R/O VILLAGE DULEHRI RAJPUTTAN, SUB TEHSIL BIHRU KALAN, TEHSIL BANGANA, DISTT. UNA, H.P. ....APPELLANT (BY MR. AASHISH KUMAR, ADVOCATE) AND MANOJ KUMAR, S/O SH. ROSHAN LAL R/O VILLAGE KANGAR, TEHSIL HAROLI DISTT. UNA, H.P. ....RESPONDENT (BY MR. PRASHANT SHARMA, ADVOCATE, AS LEGAL AID COUNSEL, FOR THE RESPONDENT) ___________________________________________________________________ It is rather unfortunate that despite the consistent view of this Court which in turn is based on the decision rendered by the Hon'ble Supreme Court, whereby the practice of dismissing complaints filed under Section 138 of the Negotiable Instruments Act (hereinafter referred to as ' NI Act') in default has been deprecated, the ::: Downloaded on - 28/03/2022 20:11:19 :::CIS 2 Magistrates in the State continue to indulge in such practice with impunity.
2. The present appeal has been filed against one .
such order passed by the learned Magistrate on 26.10.2021, whereby the complaint filed by the appellant under Section 138 of the NI Act has been dismissed in default for non-appearance of the parties.
3. I myself has considered this question in Criminal Appeal No.367 of 2015 titled as Vinod Kumar Verma Vs. Ranjeet Singh Rathore, 2016 (3) HLR 1637 and held as under:-
"2. It is not in dispute that the complaint was pending trial from the year 2013 and there is no material on record to suggest that there had earlier been any default on the part of complainant. Even when the matter was listed on 2.6.2015, petitioner, as per his version, could not appear as he had noted down a different date and in support of such contention, he has also annexed the copy of his case diary.
3. Evidently, a very hyper technical and pedantic approach has been adopted by the learned court below by dismissing the complaint for default. The complainant was diligently pursuing his remedies and he has also given an explanation for his non appearance on the date fixed. Even otherwise there is no reason why the complainant ::: Downloaded on - 28/03/2022 20:11:19 :::CIS 3 would stop pursuing his case, after all it is a complaint involving dishonour of cheque. That apart, it is always in the interest of justice that the cases should be adjudicated on merits.
.
4. Similar issue came up before the Hon'ble Supreme Court in Mohd.Azeem Vs A.Venkatesh & another (2002) 7 SCC 726 and the Hon'ble Supreme Court has held that the complaint ought not to have been dismissed by the court on account of single default on the part of complainant. It is apt to reproduce paras 3 and 4 of the judgment.
"3. From the contents of the impugned order of the High Court, we have noticed that there was one singular default in appearance on the part of the complainant. The learned Judge of the High Court observes that even on earlier dates in the course of trial, the complainant failed to examine the witnesses. But that could not be a ground to dismiss his complaint for his appearance (sic absence) on one single day. The cause shown by the complainant of his absence that he had wrongly noted the date, has not been disbelieved. It should have been held to be a valid ground for restoration of the complainant.
4. In our opinion, the learned Magistrate and the High Court have adopted a very ::: Downloaded on - 28/03/2022 20:11:19 :::CIS 4 strict and unjust attitude resulting in failure of justice. In our opinion, the learned Magistrate committed an error in acquitting the accused only for absence of .
the complainant on one day and refusing to restore the complaint when sufficient cause for the absence was shown by the complainant."
5. The order passed by the learned court below is extremely harsh. Moreover, the learned court below has not at all considered as to whether personal attendance of the complainant was essential on the date for the progress of the case."
4. Coordinate Benches of this Court have considered such matters in detail and reference can be made to one such judgment rendered in Criminal Appeal No.469 of 2019 titled as Pooja Sharma Vs. Suresh Kumar, wherein it was observed as under: "3. The impugned order passed by the Magistrate is reproduced herein: " xxxxxx xxx Called again after lunch.
23.07.2018 Present: None.
The case has been called 56 times since morning, but none appeared for parties.
::: Downloaded on - 28/03/2022 20:11:19 :::CIS 5It seems that parties are not interested to pursue the present complaint. It is already 4.00 p.m. Therefore, the present complaint is dismissed in default for non appearance of the .
parties. The file after its due completion be consigned to record room.
Sd/ Judicial Magistrate 1st Class Court No. 3,Ghumarwin, District Bilaspur H.P."
4. In view of Section 143 of the NI Act, offence under Section 138 of the NI Act is to be tried summarily and accordingly, procedure for summons case provided in Chapter XX of the Code of Criminal Procedure (hereinafter referred to as "CrPC") is applicable during the trial initiated on filing a complaint under Section 138 of the NI Act. In this Chapter, Section 256 CrPC deals with a situation of nonappearance or death of complainant.
5. I am in agreement with finding returned by Allahabad High Court in case titled as Vinay Kumar versus State of U.P. & Anr., reported in 2007 Cri.L.J. 3161, and another judgment passed by coordinate Bench of this Court in case titled as N.K. Sharma versus M/s Accord ::: Downloaded on - 28/03/2022 20:11:19 :::CIS 6 Plantations Pvt. Ltd. & another, reported in 2008 (2) Latest HLJ 1249 with respect to applicability of Section 256 CrPC in a complaint filed under Section 138 of the NI Act.
.
6. I deem it proper to reproduce Section 256 CrPC herein:
"256. Nonappearance or death of complaint. (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 subsection (1) ::: Downloaded on - 28/03/2022 20:11:19 :::CIS 7 shall, so far as may be, apply also to cases where the nonappearance of the complainant is due to his death."
.
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."::: Downloaded on - 28/03/2022 20:11:19 :::CIS 8
9. Keeping in view the effect of dismissal of complaint under Section 138 of the NI Act, the apex Court in case titled as Associated Cement Co. Ltd. Versus Keshvanand, .
reported in (1998) 1 Supreme Court Cases 687, after discussing the object and scope of Section 256 CrPC, has held that, though, the Section affords protection to an accused against dilatory tactics on the part of the complainant, but, at the same time, it does not mean that if the complainant is absent, the Court has duty to acquit the accused in invitum. It has further been held in the said judgment that the discretion under Section 256 CrPC must be exercised judicially and fairly without impairing the cause of administration of criminal justice.
10. Similarly, the apex Court in case titled as Mohd. Azeem versus A. Venkatesh and another, reported in (2002) 7 Supreme Court Cases 726, has considered dismissal of the complaint on account of one singular default in appearance on the part of the complainant as a very strict and unjust attitude resulting in failure of justice.
11. Also in case titled as S. Anand versus Vasumathi Chandrasekar, reported in (2008) 4 Supreme Court Cases 67, wherein the ::: Downloaded on - 28/03/2022 20:11:19 :::CIS 9 complaint under Section 138 of the NI Act was dismissed by the trial Court exercising the power under Section 256 CrPC on failure of the complainant or her power of attorney or the .
lawyer appointed by her to appear in Court on the date of hearing fixed for examination of witnesses on behalf of the defence, the apex Court has considered as to whether provisions of Section 256 CrPC, providing for disposal of a complaint in default, could have been resorted to in the facts of the case as the witnesses on behalf of the complainant have already been examined and it has been held that in such a situation, particularly, when the accused had been examined under Section 313 CrPC, the Court was required to pass a judgment on merit in the matter.
12. This Court in N.K. Sharma's case (supra) also, relying upon in Associated Cement Co. Ltd.'s case (supra), has held that when the Court notices that complainant is absent on a particular day, the Court must consider whether the personal attendance of the complainant is essential on that day for the progress of the case and also whether the situation does not justify the case being adjourned to another date due to any other reason and if the situation does not justify the case being adjourned, then only Court is free to ::: Downloaded on - 28/03/2022 20:11:19 :::CIS 10 dismiss the complaint and acquit the accused, but if the presence of complainant on that day was quite unnecessary then resorting to the step of axing down the complaint may not be a .
proper exercise of power envisaged under Section 256 CrPC.
13. This Court in another case titled as Boby versus Vineet Kumar, reported in Latest HLJ 2009 (HP) 723, has reiterated ratio of law laid down in N.K. Sharma' case (supra), again relying upon in Associated Cement Co. Ltd.'s case (supra).
14. Coordinate Bench of this Court in Criminal Appeal No. 367 of 2015, titled as Vinod Kumar Verma versus Ranjeet Singh Rathore, decided on 6th May, 2016 and Criminal Appeal No. 559 of 2017, titled as Harpal Singh versus Lajwanti, decided on 13th October, 2017, has held that dismissal of the complaint in default for nonappearance of the complainant on the date fixed without affording him even a single opportunity is unjustified.
15. The same principle has been reiterated by this Court in cases titled Dole Raj Thakur versus Pankaj Prashar, reported in Latest HLJ 2018(HP) 266; Dole Raj Thakur versus Jagdish Shishodia, reported in Latest HLJ ::: Downloaded on - 28/03/2022 20:11:19 :::CIS 11 2018 (HP) 296 and in Cr. Appeal No. 301 of 2018 titled Hemant Kumar vs. Sher Singh decided on 27.9.2018.
.
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. 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."
5. It would be noticed that the specific case of the complainantappellant is that the respondent was well known to him and had requested him to lend Rs.50,000/ and after receipt of the same had issued cheque No.058338 to the appellant. It is the further case of the appellant that he had diligently been pursuing the matter before the learned Trial Magistrate through a counsel. Notice of the complaint could not be effected upon the respondent despite repeated summons issued to this effect because of the Covid 19 situation.
::: Downloaded on - 28/03/2022 20:11:19 :::CIS 126. The matter was listed before the learned Magistrate on 26.10.2021 but the appellant due to some urgency could not appear and even his counsel did not put .
in appearance resulting in dismissal of the complaint in default.
7. There is nothing on record to suggest that there has been any inaction on lethargy on the part of the complainant in pursuing the complaint. Therefore, singular default in appearance on the part of the complainant could not entail the dismissal of the complaint in default, more particularly when he had been diligently pursuing the same ever since its institution on 5.2.2020.
8. As a consequence of the aforesaid discussion, I find merit in this appeal and the same is accordingly allowed. The impugned order dated 26.10.2021 passed by the learned Judicial Magistrate First Class, Court No.3, Una in Complaint No.106/2020 is set aside and the complaint is ordered to be restored to its original number. The learned Magistrate shall now proceed to decide the complaint in accordance with law.
::: Downloaded on - 28/03/2022 20:11:19 :::CIS 139. The parties are directed to appear before the learned Judicial Magistrate First Class, Court No.3, Una on .
22.4.2022.
(Tarlok Singh Chauhan) Judge 25.3.2022 (mamta) ::: Downloaded on - 28/03/2022 20:11:19 :::CIS