Chattisgarh High Court
Central Bank Of India vs Amit Kumar Singh 11 Wps/762/2019 ... on 6 February, 2019
Author: Ram Prasanna Sharma
Bench: Ram Prasanna Sharma
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Criminal Misc. Petition No.2565 of 2018
• Central Bank Of India Through Branch Manager, Shri Chandra
Mohan Gupta, S/o Kalicharan Gupta, Aged About 47 years,
Office Branch Chouhan State Supela Bhilai, Tehsil And District
Durg Chhattisgarh
---- Petitioner
Versus
• Amit Kumar Singh S/o Shri R. C. Singh R/o House No. 27/A,
Street No. 37, Sector-4, Bhilai Nagar, Tehsil And District Durg
Chhattisgarh
---- Respondent
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For the Petitioner : Shri Pragalbh Sharma, Advocate on behalf of Shri Prasoon Agrawal, Advocate For the respondent : None
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Hon'ble Shri Justice Ram Prasanna Sharma Order On Board 06.02.2019.
1. Heard on IA No.01/2018 for condonation of delay in filing the petition.
2. For the reasons mentioned in the application the same is allowed and the delay of 11 days in filing the petition is hereby condoned.
3. Also heard on application for grant of leave to appeal under Section 378(4) of CrPC.
4. This petition has been preferred against Order dated 05.9.2018 passed by Judicial Magistrate First Class, Durg (CG) in Criminal Complaint Case No.655/2012 wherein the complaint filed by the petitioner under Section 138 of the Negotiable Instruments Act, 1881 has been dismissed for want of prosecution. 2
5. It appears from the order sheet of the trial Court that the case was fixed for evidence of the petitioner and it was dismissed for single default.
6. In the matter of Associated Cement Co. Ltd. Vs. Keshvanand reported in (1998) 1 SCC 687, Hon'ble the Apex Court held as under:-
"18. Reading the Section in its entirety would reveal that two constraints are imposed on the court for exercising the power under the Section. First is, if the court thinks that in a situation it is proper to adjourn the hearing then the Magistrate shall not acquit the accused. Second is, when the Magistrate considers that personal attendance of the complainant is not necessary on that day the Magistrate has the power to dispense with his attendance and proceed with the case. When the Court notices that the complainant is absent on a particular day the court must consider whether personal attendance of the complainant is essential on that day for progress of the case and also whether the situation does not justify the case being adjourned to another date due to any other reason. If the situation does not justify the case being adjourned the Court is free to dismiss the complaint and acquit the accused. But if the presence of the complainant on that day was quite unnecessary then resorting to the step of axing down the complaint may not be a proper exercise of the power envisaged in the section. The discretion must, therefore be exercised judicially and fairly without impairing the cause of administration of criminal justice."
Again, in the matter of Mohd. Azeem Vs. A. Venkatesh & another reported in (2002) 7 SCC 726, Hon'ble the Apex Court held that in a proceeding under Section 138 of the Negotiable Instruments Act, 1881, the single default in appearance on the part of the complainant, the dismissal of the complaint case is not proper, legal and justified.
7. Dismissal of the case for single default is not permissible as per law laid down as aforementioned. Dismissal of the complaint case was not the only option before the trial Court. It 3 should have been adjourned the case for some other date as per the provisions of Section 256(1) CrMP.
8. In view of this Court, the case should have been decided on merits and it should not have sent to record room without deciding issues between the parties and without providing opportunity to adduce evidence. But that is not done in the present case, therefore, the order passed by the trial Court is not sustainable.
9. Accordingly, order passed by the trial Court is set aside allowing the petition. The trial Court is directed to proceed with the case in accordance with law and after providing opportunity of hearing to both sides and decide the issues on merits.
10. The petitioner to appear before the trial Court on 27.3.2019 for further proceedings.
Sd/-
(Ram Prasanna Sharma) JUDGE Bini