Himachal Pradesh High Court
Vinod Kumar Verma vs Ranjeet Singh Rathore on 6 May, 2016
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No.367 of 2015 .
Date of decision: 6.5.2016 Vinod Kumar Verma ...Appellant.
Versus Ranjeet Singh Rathore ...Respondent Coram of The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. Whether approved for reporting?1Yes. For the Petitioner: rt Mr.Balwant Thakur, Advocate.
For the Respondent: Mr.Sunil Sharma, Advocate .
Tarlok Singh Chauhan J(Oral):
This criminal appeal is directed against the order passed by learned Additional Chief Judicial Magistrate, Theog on 2.6.2015, whereby the complaint of the petitioner filed under Section 138 of Negotiable Instruments Act, came to be dismissed for default. The order reads thus:
"2.6.2015 Present: None for the complainant Complainant not present despite of service. Accused with Sh. Vidya Sagar, Advocate. As it is 12.30 pm. Be called again.
2.6.2015 Present: None for the complainant.
Accused with Sh. Vidya Sagar, Advocate. As it is 3.p.m.. Be called again.
2.6.2015 Present: None for the complainant.
Complainant not present despite of service. Accused with Sh. Vidya Sagar, Advocate. As it is 4.30 p.m. Cause list has been exhausted.
Whether the reporters of the local papers may be allowed to see the Judgment? Yes.
::: Downloaded on - 15/04/2017 20:17:26 :::HCHP 2Hence complaint is dismissed in default. File after due completion be consigned to Record Room."
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Sd/-
Gaurav Mahajan Addl.CJM, Theog District Shimla, HP It is not in dispute that the complaint was pending of
2. 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 rt 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 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 ::: Downloaded on - 15/04/2017 20:17:26 :::HCHP 3 account of single default on the part of complainant. It is apt to reproduce paras 3 and 4 of the judgment.
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"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 of 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 rt 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 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.
6. Having said so, I find merit in this appeal and accordingly the same is allowed. The impugned order passed by learned Addl. Chief Judicial Magistrate, Theog on 2.6.2015 in Criminal Complaint No.321/3/13 is set aside.
::: Downloaded on - 15/04/2017 20:17:26 :::HCHP 47. The parties are directed to appear before the learned Addl. Chief Judicial Magistrate, Theog on 16.5.2016.
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(Tarlok Singh Chauhan), Judge.
May 6, 2016 (sl) of rt ::: Downloaded on - 15/04/2017 20:17:26 :::HCHP