Himachal Pradesh High Court
Hemant Kumar vs Sher Singh on 27 September, 2018
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 301 of 2018 .
Decided on: 27.09.2018
Hemant Kumar ...Appellant.
Versus
Sher Singh ...Respondent.
Coram
r to
The Hon'ble Mr. Justice Vivek Singh Thakur, Judge.
Whether approved for reporting? Yes.
For the appellant: Mr. G.R. Palsra, Advocate, For the respondent: Mr. Goldy Kumar, Advocate, vice Mr. Arush Matlotia, Advocate.
Vivek Singh Thakur, Judge. (Oral) Instant appeal has been filed against impugned order, dated 17th July, 2017, passed by learned Judicial Magistrate 1st Class, Court No. 2, Mandi (hereinafter referred to as "Magistrate") in Criminal Case No. 430 III/17/10, whereby the complaint filed by appellantHemant Kumar against respondentSher Singh under Section 138 of ::: Downloaded on - 04/10/2018 22:56:43 :::HCHP 2 the Negotiable Instruments Act (hereinafter referred to as "NI Act"), came to be dismissed in default for want of .
prosecution on behalf of the complainant when the case was listed for presence of complainant after transfer of the case from Court No. 4 to Court No. 2.
2. It is apt to reproduce relevant portion of the impugned order herein:
" xxx xxx xxx
Called again after lunch.
17.07.2017
Present: None.
Case has been repeatedly called
since morning but neither complainant nor his counsel has put in appearance in the Court.
The present complaint was filed by complainant Hemant Kumar Gupta under Section 138 of Negotiable Instruments Act. The case file was received by way of transfer in this court and thereafter notice was issued to complainant to put in his appearance in the Court. A perusal of case file shows that the case has been fixed up for service of accused since 21.08.2014 wherein, the counsel for the complainant was directed to file PF for issuance of NBWs to the accused but he failed to do so despite adjournments. The absence of complainant in the court despite being duly served shows that he is not interested in continuing with the present complaint.
::: Downloaded on - 04/10/2018 22:56:43 :::HCHP 3In view of above factors, and left with no other option but to proceed further. As a result, the present complaint is dismissed in .
default for want of prosecution on behalf of complainant. File after due completion be consigned to record room.
Sd/ Judicial Magistrate 1st Class Court No. 2, Mandi, HP"
3. 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.
4. Applicability of Section 256 CrPC in a complaint filed under Section 138 of the NI Act has also been endorsed in the judgment passed 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 ::: Downloaded on - 04/10/2018 22:56:43 :::HCHP 4 passed by coordinate Bench of this Court in case titled as N.K. Sharma versus M/s Accord Plantations Pvt. Ltd.
.
& another, reported in 2008 (2) Latest HLJ 1249.
5. I deem it proper to reproduce Section 256 CrPC herein:
"256. Nonappearance 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 subsection (1) shall, so far as may be, apply also to cases where the nonappearance of the complainant is due to his death."::: Downloaded on - 04/10/2018 22:56:43 :::HCHP 5
6. 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.
7. 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 - 04/10/2018 22:56:43 :::HCHP 6
8. 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 r to 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.
9. 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.
::: Downloaded on - 04/10/2018 22:56:43 :::HCHP 710. Also in case titled as S. Anand versus Vasumathi Chandrasekar, reported in (2008) 4 .
Supreme Court Cases 67, wherein the 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 r to 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.
11. 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 ::: Downloaded on - 04/10/2018 22:56:43 :::HCHP 8 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 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.
12. 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).
13. 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 ::: Downloaded on - 04/10/2018 22:56:43 :::HCHP 9 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 non appearance of the complainant on the date fixed without affording him even a single opportunity is unjustified.
14. The same principle has been reiterated by this r to Court in cases titled Dole Raj Thakur versus Pankaj Prashar, reported in Latest HLJ 2018(HP) 266; and Dole Raj Thakur versus Jagdish Shishodia, reported in Latest HLJ 2018 (HP) 296.
15. Relying upon N.K. Sharma's case (supra), learned counsel representing the respondent has contended that the trial Court was empowered to dismiss the complaint on failure of complainant to appear in the Court on a day fixed and in present case, the complainant and his counsel had failed to appear on the date fixed without any reason and, therefore, the Magistrate was having no option other than to dismiss the complaint.
::: Downloaded on - 04/10/2018 22:56:43 :::HCHP 1016. 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 not in agreement with the contention of the learned counsel for the respondent.
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.
18. In present case, complaint was filed on 8th June, 2010, whereafter till 2017, though respondent was served, but, on different occasions, the case was transferred from one Court to another whereafter complaint was again pending for service of the respondent. For the first time, the case was transferred from the Court of JMIC, Court No. 1 to Special Judicial Magistrate on 11th March, 2013. Thereafter, on 30th May, 2015, the case again transferred from Special Judicial Magistrate to JMIC, Court No. 3. Thirdly, on 6 th ::: Downloaded on - 04/10/2018 22:56:43 :::HCHP 11 January, 2017, the case as transferred from Court No. 3 to Court No. 4. On that date, counsel for the complainant was .
present in the Court, but, as the Magistrate was not vested with the powers of JMIC, the case was adjourned for 26 th April, 2017. On 26th April, 2017, instead of Court No. 4, the case was listed in Court No. 2, causing no representation on behalf of the parties, resulting into issuance of notice, however, notice was issued to the complainant only for his presence for 17th July, 2017.
19. It is apt to record herein that though, the Dealing Hand has reported on order sheet that summon was issued on 6.7.2017 and reported service thereof on 15.7.2017 and in impugned order, dated 17th July, 2017 also, it has been stated that summons issued to the complainant was received back duly served, but, perusal of record depicts that no such notice issued and served upon the complainant for the said date is available on the record.
20. It has further been observed in the order that case is pending for service of accused since 21 st August, 2014 ::: Downloaded on - 04/10/2018 22:56:43 :::HCHP 12 directing the counsel for the complainant to file PF for issuance of nonbailable warrants to the accused, but, .
despite granting adjournments, no steps have been taken, and, thus, it is inferred that complainant is not interested in pursuing the complaint. This observation in the impugned order is also factually incorrect.
21. It is true that the complainant was directed to file PF for issuance of nonbailable warrants against the respondent vide order, dated 21st August, 2014, however, the fact remains that in pursuance to order, dated 3rd July, 2014, on filing process fee by the complainant, nonbailable warrant was issued to respondent for 21st August, 2014, but, could not be executed for want of availability of respondent at home and subsequent thereto, in compliance of order, dated 12th March, 2015, complainant had filed requisite process fee on the same day for service of respondent through nonbailable warrant for 30th May, 2015, but, there is no nonbailable warrant on record issued against respondent for the said date, rather, on that day, case was ::: Downloaded on - 04/10/2018 22:56:43 :::HCHP 13 not listed before Special Judicial Magistrate, but, was listed before JMIC, Court No. 3 as the case was transferred from .
Special Judicial Magistrate to Court No. 3 on 30th May, 2015, resulting into absence of parties and issuance of notice to parties for 26th September, 2015, which, as per report of the Dealing Hand, were not received back. However, complainant appeared on 12th January, 2016 on service of summon upon him and subsequent thereto, notice issued to respondent vide order, dated 19th April, 2016 for 5th August, 2016 was served upon the wife of the respondent, however, for want of proper service, fresh summons were directed to be issued for 6th January, 2017, on which date, the case was listed before JMIC, Court No. 4, as it was again transferred from Court No. 3 to Court No. 4, but, it was adjourned for 26th April, 2017, as Judicial Magistrate posted in Court No. 4 was not vested with the power to adjudicate the same.
But, on 26th April, 2017, case was listed before JMIC, Court No. 2, instead of Judicial Magistrate, Court No. 4, without any notice to parties causing absence of complainant and ::: Downloaded on - 04/10/2018 22:56:43 :::HCHP 14 thus, notice was ordered to be issued to the complainant for 17th July, 2017 and as referred hereinabove, ultimately, on .
that day, the complaint stands dismissed in default for non prosecution.
22. In aforesaid facts, particularly when the case was transferred four times from one Court to another and complainant continued himself to be represented either through counsel or in person, the observation of the Magistrate that complainant was not interested in continuing with the complaint is contrary to the record.
23. Further, as per record, the observation of the Magistrate that despite service, complainant was not present on 17th July, 2017, is also contrary to record as it is not established from record that complainant or his counsel was served for that date.
24. So far as steps for service of respondent are concerned, the complainant cannot be said to be uninterested for service of respondent, but, the steps were to be taken by the counsel engaged by the complainant and in ::: Downloaded on - 04/10/2018 22:56:43 :::HCHP 15 any case, if there was delay in the year 2014 in taking the steps for issuance of nonbailable warrants against the .
respondent on the part of counsel for the complainant, the complainant cannot be punished for that, that too, when the case was being transferred repeatedly from one Court to another and steps for issuance of notice were taken by complainant on numerous occasions and subsequent thereto, a notice issued to the respondent for 5th August, 2016 was served, but, his service was not considered to be proper service as it was served upon the wife of the respondent. It would also be pertinent to record herein that notices as well as nonbailable warrants issued against respondent for various dates, except summon issued for 30th April, 2011, had been received back with reports, like, he being a contractor was staying at Mandi Town, house found locked, not residing in his home and/or working as contractor at Jahu, Sarkaghat side, etc. It appears that the respondent had been evading his service deliberately.
::: Downloaded on - 04/10/2018 22:56:43 :::HCHP 1625. In normal circumstances, no complainant will be disinterested in pursuing his complaint without any reason, .
particularly, when he was appearing before different Court on transfer of the case since June, 2010.
26. In the given circumstances, it was a fit case for the Magistrate to exercise her discretion to adjourn the cae for a subsequent date.
27. to In view of the aforesaid facts and circumstances and the ratio of law laid down by the apex Court and High Courts including this Court, I am of the opinion that the Magistrate was not justified in dismissing the complaint in default for absence of complainant coupled with failure of his counsel to attend the case on that date, particularly, when there is no document/notice on record to establish that the complainant was served for that date after transfer of the case from Court No. 4 to Court No. 2.
28. For aforesaid discussion, I am of the considered opinion that there is merit in the appeal and the same deserves to be allowed. Accordingly, the appeal is allowed ::: Downloaded on - 04/10/2018 22:56:43 :::HCHP 17 and impugned order, dated 17th July, 2017, passed by Judicial Magistrate 1st Class, Court No. 2, Mandi in .
Criminal Case No. 430III/17/10 is set aside and complaint before Judicial Magistrate 1st Class, Court No. 2, Mandi is ordered to be restored to its original number and directed to be decided in accordance with law.
29. Parties are directed to appear before the Magistrate on 23rd October, 2018.
30. Appeal is allowed in above terms alongwith all pending applications, if any.
(Vivek Singh Thakur) Judge September 27, 2018 ( rajni ) ::: Downloaded on - 04/10/2018 22:56:43 :::HCHP