Himachal Pradesh High Court
Shri Ram Transport Finance Company Ltd vs Manju Devi on 24 February, 2020
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
1
IN THE HIGH COURT OF HIMACHAL PRADESH
SHIMLA
Cr.Appeal No. 351 of 2019
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Date of Decision: February 24, 2020
Shri Ram Transport Finance Company Ltd. ...Appellant.
Versus
Manju Devi ..Respondent.
Coram:
The Hon'ble Mr. Justice Vivek Singh Thakur, Judge.
Whether approved for reporting?1 Yes
For the Appellant: Mr.Ashwani Kaundal, Advocate.
For the Respondent:
r Nemo.
Vivek Singh Thakur, J (Oral)
This appeal has been preferred against impugned order dated 24.10.2018, passed by learned Chief Judicial Magistrate, Lahaul and Spiti at Kullu, H.P., in Complaint No.1217- 1/13, titled as Shri Ram Transport Finance Company Ltd. vs. Manju Devi, whereby complaint preferred by the appellant under Section 138 of the Negotiable Instruments Act (hereinafter referred to as the 'N.I. Act') has been dismissed in default for want of prosecution.
2. In present appeal, respondent has been duly served, but despite that she has not appeared in Court, which indicates that she is not interested to contest the appeal. Perusal of record also reveals that she was not appearing in the trial Court since February 2015. Arguments in the trial Court were heard on 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 02/03/2020 20:23:12 :::HCHP 218.02.2015 and thereafter learned counsel representing the respondent was also not turning up and trial Court could not ensure her presence despite issuing warrants against her.
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3. Complaint by the appellant, under Section 138 of N.I. Act for dishonouring of cheque issued by respondent, was preferred in the year 2013. After pursuing and contesting the case by the parties, arguments in the complaint were concluded on 18.02.2015 and thereafter case was listed for 26.02.2015 for furnishing of the requisite bonds by the respondent under Section 437-A Cr.P.C., but on that day and dates subsequent thereto i.e. 26.03.2015, 02.04.2015, 30.06.2015 and 03.07.2015, neither respondent nor her counsel had appeared. However, in response to non-bailable warrants issued against the respondent vide order dated 03.07.2015 read with order dated 26.03.2015, respondent had appeared alongwith counsel in the trial Court on 14.08.2015 and whereupon case was listed for arguments on 10.12.2015, on which date, it was again adjourned for 23.02.2016 for arguments. On 23.02.2016, an application for exemption was filed on behalf of the respondent-accused through her counsel, which was allowed and case was adjourned for 04.04.2016.
4. Since 04.04.2016, again, neither respondent nor her counsel had appeared on 04.04.2016, 25.06.2016, 28.09.2016, 23.12.2016 and 27.03.2017 despite issuance of bailable and non-
bailable warrants against the respondent.
::: Downloaded on - 02/03/2020 20:23:12 :::HCHP 35. On 27.03.2017 non-bailable warrants were issued against the respondent for 14.06.2017. However the said warrants were not executed and on 14.06.2017 case was .
transferred from the Court of learned Additional Chief Judicial Magistrate, Kullu to learned Chief Judicial Magistrate, Lahaul and Spiti at Kullu, who again issued non-bailable warrants against respondent, returnable on 02.12.2017.
6. Before next date of hearing i.e. 02.12.2017 case was taken on 27.11.2017 and on that day, date for returning non-
bailable warrants issued against the respondent was modified from 02.12.2017 to 28.04.2018, but on that day also, non-
bailable warrants were received back unexecuted and thereafter again non-bailable warrants were issued for 24.10.2018, but the same could not be issued for want of filing P.F. for the said purpose.
7. On 24.10.2018, impugned order of dismissing complaint has been passed by trial Court, which reads as under:-
"24.10.2018:Present:-None for complainant.
It is 12.25 PM.
Be awaited.
Called again:
Present:- None for the complainant.
It is 2.30 pm. Be awaited.
Called again at 4.00 P.M.:-
Present:- None Case repeatedly called since morning however, none appeared on behalf of complainant. The complainant has also not taken steps i.e. PF & CA for the service of the accused. The ::: Downloaded on - 02/03/2020 20:23:12 :::HCHP 4 present complaint thus is dismissed in default for want of prosecution. File after completion be consigned to record room.
Announced 24.10.2018"
In view of Section 143 of the NI Act, offence under .
8. 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 non-appearance or death of complainant.
9. 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 co-ordinate 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 with respect to applicability of Section 256 CrPC in a complaint filed under Section 138 of the NI Act.
10. I deem it proper to reproduce Section 256 CrPC herein:
"256. Non-appearance 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:::: Downloaded on - 02/03/2020 20:23:12 :::HCHP 5
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.
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(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."
11. 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.
12. 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."
13. 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 ::: Downloaded on - 02/03/2020 20:23:12 :::HCHP 6 (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.
14. 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.
15. 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 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 ::: Downloaded on - 02/03/2020 20:23:12 :::HCHP 7 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.
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16. 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 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.
17. 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).
18. 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, ::: Downloaded on - 02/03/2020 20:23:12 :::HCHP 8 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.
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19. 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 2018 (HP) 296; in Cr. Appeal No. 301 of 2018 titled Hemant Kumar vs. Sher Singh decided on 27.9.2018; and in Cr.Appeal No.469 of 2018 titled Pooja Sharma vs. Suresh Kumar, reported in 2019(1) Him.LR (HC) 495.
20. 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.
21. 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.
22. In normal circumstances, no complainant will be disinterested in pursuing his complaint without any reason. In the given circumstances, particularly when complainant continued itself to be represented either through counsel or authorized representative and the case was not only at final stage but once ::: Downloaded on - 02/03/2020 20:23:12 :::HCHP 9 arguments were also concluded, it was a fit case for the Magistrate to exercise his discretion to adjourn the case for a subsequent date.
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23. In present case complainant was contesting its case with due diligence and in fact trial was almost complete on 18.02.2015 when arguments were heard and case was listed for furnishing requisite bonds by the respondent under Section 437- A Cr.P.C. and final order on 26.02.2015. But final order could not be passed on account of conduct of the respondent as explained hereinabove.
24. 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 authorized person of the complainant coupled with failure of its counsel to attend the case on that date, particularly, when the complainant was pursuing its case from 18.10.2013 and was being represented through counsel on numerous dates fixed for service of respondent through bailable and non-bailable warrants. It is also a fact that the date on which the case has been dismissed in default was listed for service of respondent and on that day, personal presence of authorized representative of complainant was not necessary especially when counsel had already been engaged to represent the complainant and the said counsel was regularly appearing before the Magistrate but except the date of passing of impugned order.
::: Downloaded on - 02/03/2020 20:23:12 :::HCHP 1025. In aforesaid facts and circumstances and also for the conduct of the respondent before trial Court as well as in response to the warrants issued against her for her appearance .
in this appeal, her presence is not necessary for passing this order. It is also noticeable that impugned order was also passed in her absence.
26. For aforesaid discussion, I am of the considered opinion that one opportunity should have been provided to the appellant/complainant and accordingly, appeal is allowed and impugned order dated 24.10.2018, passed by learned Chief Judicial Magistrate, Lahaul and Spiti at Kullu, is set aside and the complaint preferred by the petitioner is restored to its original number and position. Appellant is directed to appear before learned Chief Judicial Magistrate, Lahaul and Spiti at Kullu, on 30.03.2020 with a direction to learned Chief Judicial Magistrate to proceed further thereafter in accordance with law after ensuring presence of respondent and decide the complaint expeditiously as possible thereafter preferably within three months.
27. Needless to say for any subsequent default appellant/complainant shall face consequences in accordance with law irrespective of view expressed in this judgment.
Record be sent back.
(Vivek Singh Thakur), Judge.
February 24, 2020 (Purohit) ::: Downloaded on - 02/03/2020 20:23:12 :::HCHP