Himachal Pradesh High Court
Suresh Kumar vs State Of Himachal Pradesh on 1 November, 2018
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 384 of 2016 Date of decision: 31.10.2018 .
Suresh Kumar. ...Petitioner
Versus
State of Himachal Pradesh. ...Respondent
Coram
The Hon'ble Mr. Justice Vivek Singh Thakur, Judge. Whether approved for reporting?1 For the Petitioner: Mr.Surinder Saklani, Advocate.
For the Respondent: Produced in custody of HHC Hukam Chand
r No. 241, under the supervision of ASI Jai
Chand, Police Station Padhar, District Mandi, H.P. Mr.Nitin Thakur, Advocate, as Amicus Curie.
Vivek Singh Thakur, Judge This appeal has been preferred against impugned order dated 13.1.2016 passed by learned Additional Chief Judicial Magistrate, Court No. 1, Mandi (herein after referred to as "Magistrate") in case NI Act No. 1157/2015 (333-III/15), whereby complaint filed by appellant Gurdass against respondent Suresh Kumar under Section 138 of Negotiable Instruments Act (hereinafter referred to as "NI Act") , came to be dismissed in default for non-presence and non-prosecution, when the case was listed for service of complainant after receiving the same on transfer from Judicial Magistrate, 1st Class, Jogindernagar, District Mandi, H.P.
2. Respondent present in Court has submitted that he is not in a position to engage counsel, therefore, Mr. Nitin Thakur, Advocate is Whether the reporters of the local papers may be allowed to see the Judgment? Yes ::: Downloaded on - 02/11/2018 22:57:50 :::HCHP 2 Cr. Appeal No. 384 of 2016 appointed as Amicus Curiae with request to assist the Court on behalf of respondent. After going through the record, under instructions of respondent, learned Amicus Curiae submits that, complaint filed against .
respondent is a false complaint and respondent has not committed any offence as alleged. In present case merits of the allegations made in the complaint are not in question, but the present petition has arisen on account of dismissal of the complaint in default by learned Magistrate. Respondent has a right to refute the allegations made in the complaint before the trial Court in accordance with law.
3. Initially the case was filed in the Court of learned Special Magistrate, Mandi on 25.4.2014, wherein preliminary evidence was led on 9.5.2014. In view of judgment passed by the Apex Court, case was transferred from the Court of Special Magistrate, Mandi to Judicial Magistrate 1st Class, Jogindernagar. The case was listed before the said Court on 1.9.2015, on which, on account of insertion of Section 142(2) in the Negotiable Instruments Act, 1881 by way of Negotiable Instruments (Amendment) Ordinance, 2015, No. 6 of 2015, promulgated by President of India on 15.6.2015, case was again ordered to be transferred back to Mandi. After receiving the same, learned Chief Judicial Magistrate, Mandi had assigned it to learned Additional Chief Judicial Magistrate and it was listed before the said court on 30.10.2015, on which date summons were issued to complainant for presence on 13.1.2016. On 13.1.2016 for absence of complainant or his counsel, impugned order has been passed, which reads as under:-
" 13.1.2016 Present None for complainant.::: Downloaded on - 02/11/2018 22:57:50 :::HCHP 3 Cr. Appeal No. 384 of 2016
Though he has been served for today, as such, let the case file be called again when the cause list for the day stands exhausted.
Sd/-
.
(Vivek Khanal) ACJM Court No. 1, Mandi, H.P. Case called again.
13.01-2016
Present: None for the complainant.
None for the accused.
Case called time and again throughout the day, but neither the complainant nor his counsel put in appearance before this court. Though the complainant is duly served for today. The cause list for the day stands exhausted, and the non appearance on behalf of the complainant as well as his counsel appears to be intentional and deliberate. As such, the complaint is dismissed for non prosecution on behalf of the complainant. It be consigned to the record room after due completion.
Announced in the open court today on this 13th day, of January, 2015.
Sd/-
ACJM Court No. 1, Mandi, H.P."
4. In view of Section 143 of NI Act, offence under Section 138 of 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 "Cr.P.C.") is applicable during the trial initiated on filing a complaint under Section 138 of the NI Act. In this Chapter, Section 256 Cr.P.C. deals with a situation of non-appearance of death of complainant.
5. 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 co-ordinate Bench of this Court in case titled as N.K. Sharma versus M/s Accord ::: Downloaded on - 02/11/2018 22:57:50 :::HCHP 4 Cr. Appeal No. 384 of 2016 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.
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6. I deem it proper to reproduce Section 256 Cr.P.C. herein:
"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 (1) shall, so far as may be, apply also to cases where the non-appearance of the complainant is due to his death."
7. Section 256 Cr.P.C. 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 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.
8. 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 Cr.P.C., which reads as under:
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"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."
9. 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 Cr.P.C, has held that, though, the Section affords protection 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 Cr.P.C. must be exercised judicially and fairly without impairing the cause of administration of criminal justice.
10. 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.
11. 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 Cr.P.C. on failure of the complainant or her power of attorney or the lawyer appointed by her to appear in Court on the date of hearing fixed for examination of ::: Downloaded on - 02/11/2018 22:57:50 :::HCHP 6 Cr. Appeal No. 384 of 2016 witnesses on behalf of the defence, the apex Court has considered as to whether provisions of Section 256 Cr.P.C., 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 Cr.P.C., the Court was required to pass a judgment on merit in the matter.
12. 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, 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 Cr.P.C.
13. This Court in another case titled as Boby 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).
14. 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, ::: Downloaded on - 02/11/2018 22:57:51 :::HCHP 7 Cr. Appeal No. 384 of 2016 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.
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15. 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.
16. In present case after leading preliminary evidence by the complainant, the case was transferred to Joginder Nagar, wherefrom it was again sent back to Mandi and the case was tossing between Courts and after receiving it at Mandi, notice was issued to complainant for his presence. Complainant had engaged a counsel at Mandi for conducting the case and it is submitted on behalf of complainant that date of case, after receiving the summons, was duly informed to the counsel, who, inadvertently, had noted down the date as 14.1.2016. Complainant was duly represented by counsel stationed at Mandi, but his counsel had 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 considered as justified under the bona fide belief that the counsel may attend his complaint in his absence, particularly, on a date of hearing, in which no role on the part of complainant was to be performed and after his presence notice was to be issued to respondent.
17. 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 ::: Downloaded on - 02/11/2018 22:57:51 :::HCHP 8 Cr. Appeal No. 384 of 2016 complaint in default for single absence of the complainant coupled with failure of his counsel to attend the date. In view of the fact that case was transferred from Mandi to Jogindernagar and again re-transferred .
from Jogindernagar to Mandi, learned Magistrate instead of dismissing the complaint in default should have adjourned the case at least once for a future date, particularly keeping in view the effect of dismissal of the same in default.
18. 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 exhausting of cause list of the Court. As discussed above, in the facts and circumstances of the case, dismissal of complaint on first absence of complainant is improper. In normal circumstances, no complainant will be disinterested in pursuing his complaint without any reason. It was a fit case for the Magistrate to exercise his discretion to adjourn the case for a subsequent date.
19. In view of the 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 13.1.2016, passed by learned Additional Chief Judicial Magistrate, Mandi in case NI Act No. 1157/2015 (333-III/15) is set aside and complaint before learned Additional Chief Judicial Magistrate, Mandi, ::: Downloaded on - 02/11/2018 22:57:51 :::HCHP 9 Cr. Appeal No. 384 of 2016 District, Mandi, H.P. is ordered to be registered to its original number and directed to be decided in accordance with law.
20. In view of assistance rendered by Mr.Nitin Thakur, learned .
Amicus Curiae, I would like to add word of appreciation for him.
21. Parties are directed to appear before the Magistrate on 26th November, 2018.
22. Appeal is allowed in above terms along with all pending application(s), if any.
(Vivek Singh Thakur),
r Judge.
31st October, 2018
(KRS)
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