Himachal Pradesh High Court
Bal Krishan Rawat vs Pyare Lal Nepta on 11 January, 2018
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 5 of 2009 .
Decided on: 11.01.2018
Bal Krishan Rawat ...Appellant.
Versus
Pyare Lal Nepta ...Respondent.
Coram
r to
The Hon'ble Mr. Justice Vivek Singh Thakur, Judge.
Whether approved for reporting? Yes.
For the appellant: Mr. Virender Singh Chauhan, Advocate.
For the respondent: Mr. Romesh Verma, Advocate.
Vivek Singh Thakur, Judge. (Oral) Instant appeal has been preferred against impugned order, dated 30th October, 2008, passed by learned Judicial Magistrate 1st Class, Jubbal (hereinafter referred to as "Magistrate") in Case No. 18/3 of 2005, whereby the complaint filed by appellantBal Krishan Rawat against respondentPyare Lal Nepta under Section 138 of the ::: Downloaded on - 12/01/2018 23:12:32 :::HCHP 2 Negotiable Instruments Act (hereinafter referred to as "NI Act"), came to be dismissed in default for nonpresence and .
nonprosecution, when the case was listed for recording of defence evidence.
2. It is apt to reproduce the impugned order herein:
"30.10.2008 Pr. None for complainant.
Sh. Satish Pirta Adv. for the accused. Accused also present. He has moved an application u/s 315 Cr.P.C. and also application u/s73 Cr.P.C. Since none is present for complainant and neither complainant is present case be called again.
Sd/ JMIC, Jubbal 30.10.2008: Case called again: Present: None for the complainant.
Accused present with Satish Pirta, advocate.
Case called out thrice. Neither the
complainant nor his counsel are present. Let it be
called out again after respite.
Sd/
JMIC, Jubbal
Case called after respite:
Present: None for the complainant.
Accused present with Satish Pirta, advocate.
It is already 4:00 pm. Neither the complainant nor his counsel is present. Case has been called out repeatedly. As none is present for the complainant, hence, the instant complaint is dismissed I default on account of nonpresence and ::: Downloaded on - 12/01/2018 23:12:32 :::HCHP 3 nonprosecution. File after due completion be consigned to records.
Announced. Sd/
.
30/10/2008 JMIC, Jubbal"
3. In view of Section 143 of the NI Act, offence under 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 nonappearance of death of complainant.
4. In the judgment passed 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 coordinate 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, Section 256 CrPC has been held to be applicable in a complaint filed under Section 138 of the NI Act.::: Downloaded on - 12/01/2018 23:12:32 :::HCHP 4
5. It is apt to reproduce Section 256 CrPC herein:
"256. Nonappearance 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 subsection (1) shall, so far as may be, apply also to cases where the nonappearance of the complainant is due to his death."
6. 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 ::: Downloaded on - 12/01/2018 23:12:32 :::HCHP 5 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.
7. 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."
8. 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 (1998) 1 Supreme Court Cases 687, after discussing the object and scope of Section 256 CrPC, has held that, though, the Section affords protection ::: Downloaded on - 12/01/2018 23:12:32 :::HCHP 6 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
9. to cause of administration of criminal justice.
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.
10. 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 ::: Downloaded on - 12/01/2018 23:12:32 :::HCHP 7 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 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.
11. 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, ::: Downloaded on - 12/01/2018 23:12:32 :::HCHP 8 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.
12. This Court in another case titled as Boby r to 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).
13. 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, 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.
::: Downloaded on - 12/01/2018 23:12:32 :::HCHP 914. Relying upon N.K. Sharma' case (supra), learned counsel representing the respondent has contended .
that the trial Court was empowered to dismiss the complaint on failure of complainant to appear in the Court on a day fixed and in present case, the complainant and his counsel had failed to appear on the date fixed without any reason and, therefore, the Magistrate was having no option other than to dismiss the complaint.
15. 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 not in agreement with the contention of the learned counsel for the respondent.
16. It is also submitted by learned counsel for the respondent that a Civil Suit involving the amount of cheque under consideration for recovery of ₹ 25,40,000/ has been decreed exparte against the respondent wherein the respondent has undertaken proceedings for setting aside the exparte decree. Further, that it would be appropriate to ::: Downloaded on - 12/01/2018 23:12:32 :::HCHP 10 dismiss this appeal and let the parties to determine their right decided in the Civil Court. This contention is also not .
tenable as the complainant has right to file criminal as well as civil proceedings independent of each other and these proceedings are to be decided on its own merit having no influence of the findings recorded in one case on the other.
17. 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.
18. In present case, the case was at advance stage of hearing, statement of respondent under Section 313 CrPC had been recorded and case was fixed for recording defence evidence. The complainant was duly represented by the counsel, but his counsel has also failed to put in appearance before the Magistrate for which complainant may not be held liable directly, rather, absence of the complainant, as he has engaged a counsel to represent him, may be ::: Downloaded on - 12/01/2018 23:12:32 :::HCHP 11 considered as justified under the bona fide belief that the counsel may attend his complaint in his absence. For .
recording statements in defence, presence of complainant was not necessary. Even, crossexamination on his behalf would have been conducted by the counsel appointed by him, but, the effect of absence of counsel for the complainant would have been that crossexamination of witnesses could not have been done, but so far as recording of evidence is concerned, the Court might have proceeded further in recording the evidence in defence.
19. The facts of present case are identical to the facts involved in S. Anand's case (supra).
20. In view of the ratio of law laid down by the apex Court and other judgments of the High Courts, including this Court, I am of the opinion that the learned Magistrate was not justified in dismissing the complaint in default for single absence of the complainant coupled with failure of his counsel to attend the date. From the stage of complaint, it is evident that presence of complainant, on that day, was ::: Downloaded on - 12/01/2018 23:12:32 :::HCHP 12 unnecessary as the case was at final stage. The Magistrate instead of dismissing the complaint in default should have .
adjudicated upon the complaint on merit and for that purpose, he might have adjourned the case for a future date.
21. In the impugned order, there is no finding of the Magistrate that the complainant was not pursuing the complaint honestly and diligently. There is no reference of previous history, if any, with regard to conduct of the complainant causing unnecessary delay on account of adjournments sought by him or for want of his presence.
There is only reference of his absence on the date since morning till postlunch session. Therefore, acquittal of the accused without adjudicating the case on merits, due to non appearance of the complainant on the date of defence evidence, who was sincerely pursuing his remedy, is improper. In normal circumstance, no complainant will be disinterested in pursuing his complaint without any reason, particularly, when it is at final stage of trial involving stake ::: Downloaded on - 12/01/2018 23:12:32 :::HCHP 13 of ₹ 20 lakhs. It was a fit case for the Magistrate to exercise his discretion to adjourn the case for a subsequent date.
.
22. In view of above facts, circumstances and discussion, I am of the view that there is merit in the appeal and it deserves to be allowed. Accordingly, appeal is allowed and impugned order, dated 30th October, 2008, passed by learned Judicial Magistrate 1st Class, Jubbal (hereinafter referred to as "Magistrate") in Case No. 18/3 of 2005, is set aside and complaint before Judicial Magistrate 1 st Class, Jubbal is ordered to be registered to its original number and directed to be decided in accordance with law.
23. Parties are directed to appear before the Magistrate on 23rd February, 2018.
24. Appeal is allowed in above terms alongwith all pending applications, if any.
(Vivek Singh Thakur) Judge January 11, 2018 ( rajni ) ::: Downloaded on - 12/01/2018 23:12:32 :::HCHP