Punjab-Haryana High Court
Print Links (India) And Anr. vs Kiran Paper Convertors And Merchants ... on 16 May, 2007
Equivalent citations: 2007CRILJ3460, AIR 2007 (NOC) 2288 (P. & H.) = 2007 CRI. L. J. 3460
Author: Mahesh Grover
Bench: Mahesh Grover
JUDGMENT Mahesh Grover, J.
1. The appellants had initially filed a petition under Section 482 of the Cr. P. C. which was directed to be treated as an appeal vide this Court's order dated 19-2-2003.
2. A complaint under Section 138 of the Negotiable Instruments Act, 1881 (for short, 'the Act') was filed by the appellants against the respondents as the cheque bearing No. 335788 dated 13-12-1995 issued by the latter for payment of Rs. 15,000/-, which was due to the former, was, on presentation, dishonoured by the drawee bank, i.e. Punjab and Sind Bank, Railway Road, Jalandhar and despite the statutory notice having been issued, they did not bother to discharge their liability. The Judicial Magistrate 1st Class, Jalandhar (hereinafter referred to as 'the trial Magistrate'), in whose Court the complaint was presented, recorded the preliminary evidence of the appellants and vide order dated 22-4-1996, ordered the summoning of the respondents. On 9-12-1996, the respondents put in appearance and were admitted to bail. The trial Magistrate thereafter commenced upon his proceedings to determine the controversy. On 24-4-1997, the complaint was fixed for cross-examination of PW 1 and recording of the remaining evidence of the appellants. However, on that' day, as no one appeared on their behalf, the complaint was dismissed in default for want of prosecution and the respondents were discharged. The order dated 24-4-2007 passed by the trial Magistrate is reproduced below:
Case called several times since morning but none has appeared on behalf of the complainant. It is now 3.45 p.m. The complaint is dismissed in default for want of prosecution and the accused is discharged. File be consigned to the record room.
3. The appellants, thereafter, filed an application on 27-5-1997 for restoration of the complaint, which was dismissed by the trial Magistrate vide order dated 4-10-1997. A revision ensued before the Additional Sessions Judge, Jalandhar, which was also dismissed on 18-5-1999. '
4. The present appeal is an outcome of the aforesaid factual background.
5. As mentioned above, the appellants had initially filed a petition under Section 482 of the Cr. P. C. to which a serious objection was raised by the respondents and ultimately, the appellants confined their challenge to order dated 24-4-1997 of the trial Magistrate whereby the complaint was dismissed in default and prayed that the petition may be treated as an appeal, which ' prayer was accepted on 19-2-2003.
6. It was contended by the learned Counsel for the appellants that the appellants were regularly pursuing their complaint and that a single instance of non-appearance should not have resulted in the dismissal thereof for want of prosecution. In support of his contention, learned Counsel placed reliance on Mohd. Azeem v. A. Venkatesh and Anr. ; Jagdish Grover v. Om Prakash 1994 (1) RCR (Cri) 270 (Punj & Har); Sant Lal Bhatia v. City Credit and Leasing Company, Hisar 2002 (3) RCR (Crl) 250 (Punj & Har); Manjit Kaur v. State of Punjab and Anr. 2006 (4) RCR (Cri) 680 : 2006 Cri LJ 3172 (Punj & Har); Shiv Kumar v. Mohd. Saghir 1997 (1) RCR (Cri) 709 : 1997 Cri LJ 1264 (Delhi); Smt. R. Rajeshwari v. H.N. Jagdish 2002 (1) RCR (Cri) 111 (Kant) and Shri Chakara Finance rep. by its Managing Partner G. Kesavan v. K. Senguttuvan 2003 (1) RCR (Cri) 494 (Mad).
7. The learned Counsel for the respondents, however, contended that the complaint was fixed for cross-examination of PW 1 and for recording of the remaining evidence of the appellants and as no one appeared on their behalf on the date fixed, the dismissal of the complaint in default for want of prosecution was perfectly justified.
8. I have thoughtfully considered the rival contentions and have gone through the whole record.
9. Concededly, the appellants had, in their application for restoration of the complaint, pleaded that their attorney was unwell and was undergoing treatment and had been advised complete bed rest on account of a disc problem. Before that, the attorney had been appearing regularly and pursuing the complaint. The appellants have obviously suffered a financial set-back because of the dishonouring of the cheque issued by the respondents. In such circumstances, it should be the endeavour of the Court to render substantial justice to the parties and not to resort to technicalities to defeat the substantial right of a person, who has knocked its doors in expectation that his grievance would be redressed. The proceedings under Section 138 of the Act, though criminal in nature, do not really signify a criminal content and flow from the Act, the basic object and purpose of which is to harness the violators of the transactions arising from mercantile law and to ensure that the necessary commitment flows from their obligation and make them liable for criminal prosecution to achieve the aforesaid objective.
10. In this view of the situation efforts of the Magistrates should be to decide the complaints on merits, rather than to dismiss them by taking hyper-technical view.
11. My aforementioned view is fortified by the observations made in Mohd. Azeem's case (supra); Sant Lal Bhatia's case (supra) and Manjit Kaur's case (supra).
12. Consequently, this appeal is accepted, order dated 24-4-1997 is set aside and the trial Magistrate is directed to restore and decide the complaint on merits. Needless to say, the record of the Court of the trial Magistrate shall be remitted back immediately.
The parties shall appear before the trial Magistrate on 23-7-2007.