Himachal Pradesh High Court
Narain Singh vs Jasvir Singh Sudan on 22 May, 2023
Author: Jyotsna Rewal Dua
Bench: Jyotsna Rewal Dua
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Appeal No.197 of 2023 Decided on: 22nd May, 2023 .
_________________________________________________________________ Narain Singh ....Appellant Versus Jasvir Singh Sudan ...Respondent _________________________________________________________________ Coram Hon'ble Ms. Justice Jyotsna Rewal Dua, Judge 1 Whether approved for reporting?
For the appellant:
r to _________________________________________________________________ Mr. K.B. Khajuria, Advocate.
Jyotsna Rewal Dua, Judge Cr.MP(M) No. 896 of 2023 The applicant has pleaded that he became aware of dismissal of his complaint vide impugned order only in December, 2022. It is the stand of the applicant that he was never served by the police official with the summons to remain present in learned Trial Court on 09.11.2021. That the service report of police officials is de horse the facts and in this regard, the applicant has lodged a complaint with the Superintendent of Police Bilaspur, H.P. 1 Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 25/05/2023 20:30:20 :::CIS -2-2. For the reasons stated in the application, and in view of observations made in para-4 of this order, delay in filing the present appeal is condoned in the interest of justice.
.
The application to stand disposed of.
Appeal be registered.
Cr. Appeal No. 197 of 20233. The order impugned in this appeal is dated 09.11.2021, whereby learned Trial Court dismissed the complaint instituted by the appellant under Section 138 of the Negotiable Instruments Act (the Act in short) on failure of the complainant (appellant) to appear before the Court.
Consequently, the respondent-accused was also acquitted.
4. The impugned order reflects that the respondent-
accused was yet to be served before the learned Trial Court in the proceedings initiated by the appellant under Section 138 of the Act on 05.03.2012. In the instant appeal and in the accompanying application under Section 5 of the Limitation Act, notice was ordered to be issued to the respondent on 17.04.2023. The notice was received back unserved with the report that real nephew of the respondent-accused had stated that the respondent-accused had long back shifted to some ::: Downloaded on - 25/05/2023 20:30:20 :::CIS -3- new location/place and changed his address. That his old house had been auctioned on account of non-payment of bank loan. That his family members were not aware about his new .
address. Learned counsel for the appellant stated that the appellant was aware of only that address of the respondent-
accused which is mentioned in the cause title. That the appellant is not aware of any other address of the respondent.
Be that as it may.
Taking into consideration the service report and the fact that the respondent-accused has not yet been served in the complaint instituted by the appellant under Section 138 of the Act, in the year 2012 before the learned Trial Court and also taking into consideration the nature of the order being proposed to be passed hereinafter, I am of the considered view that no further attempts are required to be made for service of the respondent-accused in this petition.
5. The appellant instituted complaint under Section 138 of the Act against the respondent-accused on 05.03.2012.
The documents placed on record by the appellant reflect that preliminary evidence was adduced by the appellant on 13.08.2012 where-after summons were ordered to be issued to ::: Downloaded on - 25/05/2023 20:30:20 :::CIS -4- the respondent-accused. Respondent-accused was not served.
Bailable/non-bailable warrants issued against the respondent-
accused have also remained unexecuted. 'Zimini' orders .
placed on record of the case show that 'N' number of times efforts were made for service of the respondent-accused, however, he could not be served. In the interregnum, the complaint was ordered to be transferred from the Court of learned Judicial Magistrate, Ghumarwin to the Court of learned Chief Judicial Magistrate Bilaspur, District Bilaspur, H.P. It appears that the respondent-accused could not be served even before the Court of learned Chief Judicial Magistrate Bilaspur. The complaint was further transferred to the Court of learned Judicial Magistrate Jhandutta, District Bilaspur. Upon transfer, learned Judicial Magistrate Jhandutta, ordered for service of both the parties for the next date i.e. 09.11.2021. On 09.11.2021, finding that the complainant was not present despite service, learned Judicial Magistrate Jhandutta dismissed the complaint and acquitted the respondent-accused. It is in the aforesaid circumstances, the complainant has moved this appeal.
::: Downloaded on - 25/05/2023 20:30:20 :::CIS -5-6. I have heard learned counsel for the appellant and with his assistance also considered the record appended with this appeal.
.
As per the impugned order, the complainant was absent despite service. In this regard, learned counsel for the appellant invited attention to a complaint made by the petitioner to the Superintendent of Police, District Bilaspur, H.P. on 04.01.2023 (Annexure A-1). In this complaint, the appellant has raised a grievance that he was never served by the police officials with the summons to remain present in the Court of learned Judicial Magistrate Jhandutta, District Bilaspur, H.P. on 09.11.2021. That he became aware of dismissal of his complaint for want of his appearance only in December 2022. In the aforesaid complaint he requested the Superintendent of Police, District Bilaspur to inquire into the matter and to take action against erring police official.
Reference was also made to the service report presented before the learned Court below (page 34, back side of the summons report issued for his presence on 09.11.2021). Learned counsel for the appellant contended that the appellant had never been served for his presence before the learned Court for ::: Downloaded on - 25/05/2023 20:30:20 :::CIS -6- 09.11.2021. It is in the aforesaid circumstances that the appellant could not remain present before the Court.
In the interest of justice, I am inclined to accept .
the reasons given by learned counsel for the appellant. The complaint was instituted on 05.03.2012. The complainant had been pursuing the matter. He was represented by his learned counsel. Twice his complaint was transferred from one Court to another. On 18.09.2021, the transferee Court i.e. Court of learned Judicial Magistrate First Class Jhandutta, District Bilsapur ordered for service of both the parties for 09.11.2021.
According to the appellant, he did not receive any notice/summons for his presence in the learned Court for 09.11.2021. That in December 2022 on coming to know of dismissal of his complaint for want of his appearance, he lodged a complaint with the Superintendent of Police, Bilsapur on 04.01.2023 with respect to submission of incorrect and false service report in the Court. The complainant became aware of dismissal of his complaint only in December 2022, whereafter he collected the documents and immediately informed the Superintendent of Police Bilsapur about wrong ::: Downloaded on - 25/05/2023 20:30:20 :::CIS -7- service report presented by the concerned police officials to the learned Court.
In 2023(4) SCC 326 (M/s BLS Infrastructure Ltd. Vs. .
M/s Rajwant Singh and Others), the question that arose for consideration before the Hon'ble Apex Court was whether in the facts of the case, the learned Magistrate was justified in dismissing the criminal complaint for non-appearance of the complainant even though the statement of the complainant had been recorded.
r The Hon'ble Apex Court noticed the provision of Section 256 of the Code of Criminal Procedure, which is reproduced below: -
"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.
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 Sub-Section (I) shall, so far as may be, applied also to cases where the non-appearance of the complainant is due to his death"
The Hon'ble Apex Court held that proviso to sub Section (1) of Section 256 of Code of Criminal Procedure would ::: Downloaded on - 25/05/2023 20:30:20 :::CIS -8- indicate that where the Magistrate is satisfied that the personal attendance of the complainant is not necessary, he can dispense with the attendance of the complainant and .
proceed with the case. Such a situation may arise where complainant's/prosecution's evidence has been recorded and to decide the case on merit, complainant's presence is not necessary. Relevant paras from the judgment are as under: -
" 12. A plain reading of the proviso to sub-section (1) of Section 256 would indicate that where the Magistrate is satisfied that the personal attendance of the complainant is not necessary, he can dispense with the attendance of the complainant and proceed with the case. Such a situation may arise where complainant's/prosecution's evidence has been recorded and to decide the case on merits, complainant's presence is not necessary.
13 ..........
14. In Associated Cement Co. Ltd. (supra), the purpose of inserting a provision like Section 256 of the Code was discussed and in light thereof, in paragraph 16, it was observed as under:
"16. What was the purpose of including a provision like Section 247 in the old Code (or Section 256 in the new Code). It affords some deterrence against dilatory tactics on the part of a complainant who set the law in motion through his complaint. An accused who is per force to attend the court on all posting days can be put to much harassment by a complainant if he does not turn up to the court on occasions when his presence is necessary. The section, therefore, affords protection to an accused against such tactics of the complainant. But that ::: Downloaded on - 25/05/2023 20:30:20 :::CIS -9- does not mean if the complainant is absent, the court has a duty to acquit the accused in invitum."
After observing as above, it was held that where the complainant had already been examined as a witness in .
the case, it would not be appropriate for the Court to pass an order of acquittal merely on non-appearance of the complainant. Thus, the order of acquittal was set-aside and it was directed that the prosecution would proceed from the stage where it reached before the order of acquittal was passed.
15. In the instant case, we notice that there is a specific averment in the Special Leave Petition(s) that the appellant had led its evidence in the case and thereafter had moved an application under Section 311 of the Code to summon and examine further witnesses. In Paragraph 5(u), it is stated that the trial court as well as the High Court did not take into consideration that the complainant's cross-examination had been over in Complaint Case Nos.621742/16, 621743/16 and 621744/16, and no cross-examination was sought in other cases. Rather, CW-1's cross-examination in the above three complaint cases was adopted. There appears no specific denial of the aforesaid factual position.
However, we find that neither the High Court nor the learned Magistrate has taken notice of the aforesaid position. Both the courts below thus failed to consider whether in the facts of the case under the proviso to sub- section (1) of Section 256, the court could proceed with the matter after dispensing with the attendance of the complainant."
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In the instant case the complainant had led preliminary evidence. He had been pursuing his complaint ever since the year 2012. Respondent-accused has not been .
served with the complaint till date. The complainant has given cogent reasons for his absence in the learned Trial Court on 09.11.2021. In the aforesaid circumstances, in the interest of justice, the present appeal is allowed. The impugned order dated 09.11.2021 is set aside. The complainant/appellant through his learned counsel is directed to appear before the learned Trial Court on 14.06.2023 when further proceedings shall be taken in accordance with law.
The Superintendent of Police through learned Advocate General is directed to take appropriate action on the complaint preferred by the appellant/complainant (annexure A-1, dated 04.11.2023) and submit his report before this Court by 23.06.2023.
Let copy of this appeal be supplied to the learned Advocate General for the purpose of holding inquiry on the complaint preferred by the complainant/appellant.
The pending miscellaneous application(s), if any, also stand disposed of.
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List on 23.06.2023, for the aforesaid limited purpose.
.
Jyotsna Rewal Dua
Judge
May 22, 2023
R.Atal
r to
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