Punjab-Haryana High Court
Narender Parashar vs Jagbir Singh on 10 March, 2009
Criminal Misc. No.530-MA of 2008 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
****
Criminal Misc. No.530-MA of 2008 (O&M)
Date of Decision:10.03.2009
Narender Parashar
.....Petitioner
Vs.
Jagbir Singh
.....Respondent
CORAM:- HON'BLE MR. JUSTICE HARBANS LAL
Present:- Ms. Monisha Lamba, Advocate for Mr. R.K. Lamba,
Advocate for the petitioner.
****
JUDGMENT
HARBANS LAL, J.
Criminal Misc. No.49458 of 2008 Heard. Delay of 274 days in filing this appeal is condoned as per reasons mentioned in this application.
Leave granted.
Criminal Misc. No.530-MA of 2008 The brief facts are that the complaint was filed by the appellant under Sections 138, 141 and 142 of the Negotiable Instruments Act read with Section 420 of IPC against the respondent, who was summoned to face trial. On each and every date of hearing, the appellant had been appearing. The complaint was fixed for 4.6.2007, but due to communication gap between the Reader of the Court and the learned counsel for the appellant, the date was wrongly noted by the latter as 24.11.2007 instead of 5.11.2007. Counsel for the appellant along with appellant appeared before the Court of learned Additional Chief Judicial Magistrate, Faridabad on 24.11.2007. Criminal Misc. No.530-MA of 2008 (O&M) -2- The case was not shown in the cause list. On inquiry, it was revealed that the complaint was dismissed in default on 5.11.2007 due to non-appearance of the appellant, whereafter, the appellant filed a revision petition before learned Additional Sessions Judge, Faridabad on 15.12.2007. The same has been dismissed as withdrawn with the observation that the revisionist is left to seek his remedy as per law. No notice was issued by the aforesaid Court before dismissing the complaint. That being so, the impugned order dated 5.11.2007 is liable to be set aside and the complaint deserves to be restored.
I have heard the learned counsel for the appellant, besides perusing the impugned order with due care and circumspection. The impugned order dated 5.11.2007 reads in the following terms:-
"Case called at least 10 times since morning but complainant has not turned up, nor his counsel responded the calls. Hence, I do hereby dismiss the present complaint for want of prosecution and acquit the accused of the charge. File be consigned to the records."
The cause shown by the appellant for his non-appearance before the learned trial Court is noting down the next date of hearing as 24.11.2007 instead of 5.11.2007 due to communication gap between Reader of the Court as well as his counsel. As is well known, a party should not be allowed to suffer because of a negligence on his counsel's part. In re:
Purushotam Mantri v. Vinod Tandon alias Hari Nath Tandon, 2008(3) Punjab Law Reporter 595 (P&H), it has been observed that it would be too harsh on the petitioner to non-suit him merely for his non-appearance on one date. In the instant case too, the facts are similar. To my mind, the cause put-forth by the appellant for setting aside the impugned order is Criminal Misc. No.530-MA of 2008 (O&M) -3- sufficient. The doctrine of `audi alteram partem' too contemplates that no one should be condemned unheard. If the impugned order is allowed to hold ground without any fault of the appellant, he will feel prejudiced in his right. In the words of F. Bucan "Nothing rankles more in the human heart than brooding sense of injustice." If the appellant is not afforded the opportunity to substantiate the allegations contained in complaint by leading evidence, it will go on rankling in his mind that injustice has been done to him. The Courts are here to administer justice. Therefore, without sojourning any longer on this short point, the impugned order dated 5.11.2007 passed by the Court of learned Additional Chief Judicial Magistrate, Faridabad is set aside with a direction to restore Complaint Case No.378/19.10.2006 bearing caption `Narender Parashar v. Jagbir Singh' to its original number and proceed further according to law. The appellant through his counsel has been directed to put in his appearance before the afore-mentioned Court on 16.4.2009 at 10:00 A.M. The Registry is directed to transmit a certified copy of this judgment to the said Court at the earliest possible.
March 10, 2009 ( HARBANS LAL ) renu JUDGE Whether to be referred to the Reporter? Yes/No