Telangana High Court
M/S. Lafarge Aggregates Concrete India ... vs M/S. Sbc Infra Projects India Pvt., ... on 7 January, 2022
Author: G. Radha Rani
Bench: G. Radha Rani
THE HON'BLE Dr. JUSTICE G. RADHA RANI
CRIMINAL PETITION No.2915 of 2013
ORDER:
This petition is filed by the petitioner - complainant under Section 482 Cr.P.C. to quash the order dated 31.01.2013 passed in Crl.R.P. No.205 of 2012 by the IV Additional Metropolitan Sessions Judge, Nampally, Hyderabad, confirming the order dated 06.06.2012 passed in CC No.1233 of 2011 by the III Additional Chief Metropolitan Magistrate, Hyderabad.
2. The petitioner submitted that he was a company registered under the provisions of the Companies Act, 1956 engaged in the business of manufacture and supply of ready mix concrete. On being approached by A2 and A3, requesting for supply of ready mix concrete, he supplied concrete to the accused for an amount of Rs.10,44,300/-. The accused in furtherance of the said due amount issued a cheque dated 20.08.2009 for a sum of Rs.5.00 lakhs, but the same was dishonoured. The petitioner filed a complaint under Section 138 of the Negotiable Instruments Act (for short 'NI Act') on the file of III Additional Chief Metropolitan Magistrate vide CC No.519 of 2010. Subsequent to filing of the said complaint, the accused approached him for settlement and entered into a settlement agreement dated 05.01.2011. In view of the said settlement, the accused paid a sum of Rs.5,15,000/- by way of demand draft dated 05.01.2011. In furtherance of the said settlement dated 05.01.2011, Dr.GRR,J 2 Crlp.No.2915 of 2013 the accused issued two cheques dated 12.02.2011 and 20.02.2011 for the remaining outstanding amount of Rs.5,44,300/-. When the said two cheques were deposited for realization the same were dishonoured for the reason 'Funds Insufficient'. The petitioner approached the Court of the III Additional Chief Metropolitan Magistrate and filed a complaint under Sections 138 and 142 of NI Act and the same was numbered as CC No.1233 of 2011. While the matter was pending before the III Additional Chief Metropolitan Magistrate on 06.06.2012 the Court dismissed the complaint in terms of Section 204 (4) of Cr.P.C. for the reason that there was no representation for the complainant, the complainant was absent and the process was also not paid. Aggrieved by the said order, the petitioner filed a revision petition under Section 397 Cr.P.C. The said revision petition was dismissed by the IV Additional Metropolitan Sessions Judge, Hyderabad vide Crl.R.P. No.205 of 2012. Challenging the same, he filed the present quash petition.
3. Heard the learned counsel for the petitioner as well as the learned counsel for the respondent Nos.1 to 3.
4. Learned counsel for the petitioner submitted that the dismissal of the complaint for non-appearance could only be when the personal attendance of the complainant was essential on that day for the progress of the case. The situation did not justify the dismissal of the case. The case could be adjourned to another date. The Court below ought to have seen that the matter was entrusted to the junior Dr.GRR,J 3 Crlp.No.2915 of 2013 counsel for making representation and to file an application to dispense with the presence of the complainant. But, the said junior counsel failed to make representation. The said non-representation of the junior counsel in the above matter on the specified date was due to the heavy work and for the reason that he was engaged in other courts. The revision court erred in holding that there was non-prosecution on the part of the complainant without assigning any reason to substantiate the same. The courts below failed to appreciate that the authorized representative of the petitioner - complainant had resigned and for the said reason, there was no representation on behalf of the petitioner - complainant representing the petitioner - complainant. In view of the affidavit filed by the junior counsel explaining the reasons for his non-appearance, the Court ought to have allowed the revision. Non-restoration of the complaint would result in great loss and hardship to the petitioner-complainant and prayed to quash the orders of the Courts below.
5. Learned counsel for the respondent Nos.1 to 3, on the other hand, submitted that the order in Crl.R.P. No.205 of 2012 was a well reasoned order. There was no abuse of process of law to quash the same. The petitioner failed to demonstrate his bonafides in pursuing his complaint and prayed to dismiss the petition.
6. Perused the record. The record would disclose that CC No.1233 of 2011 was dismissed by the III Additional Chief Metropolitan Magistrate on 06.06.2012 under Section 204 (4) Cr.P.C.
Dr.GRR,J 4 Crlp.No.2915 of 2013 on the ground that the complainant was absent and failed to pay the process. Aggrieved by the said dismissal, the complainant preferred a revision and the said revision petition was dismissed on 31.01.2013. On a perusal of the same, it was a well reasoned order. On observing that there was no representation by the complainant before the trial Court for a period of 8 months, as the complainant consistently absented from 10.10.2011 till 06.06.2012 and the complainant failed to comply with the order of the trial Court to pay process for issuing summons to the accused and there was no compliance of the said order from 31.01.2012 to 06.06.2012, the revision Court found that the order of the trial Court did not suffer from any irregularity or impropriety to interfere with it.
7. However, the Court below ought to have considered the affidavit filed by the junior counsel on record wherein he stated that he was busy in the Court of VIII Additional Metropolitan Sessions Judge cum Special Court for Economic Offences, wherein a batch of 9 cases were listed and was instructed to file dispense with applications in that batch of cases, including two more cases before the IV Additional Chief Metropolitan Magistrate and Crime No.47 of 2012 on the file of XII Additional Chief Metropolitan Magistrate and since he was shuffling from one Court to another could not represent the matter before the III Additional Chief Metropolitan Magistrate and his absence on the said date was not intentional and due to his mistake, the complainant should not suffer.
Dr.GRR,J 5 Crlp.No.2915 of 2013
8. It was true that the complainant - petitioner should have been diligent in pursuing the case. However, due to the dismissal of the complaint, it was the complainant who would be suffering, who filed the case under Section 138 of the NI Act for dishonour of cheque. The interest of justice cannot be defeated due to the mistake of the counsel on record and the courts are intended to serve the ends of justice by dispensation of justice but not by dismissing the cases on technicalities. This court possesses the inherent power to be exercised ex debito justitae to do the real and substantial justice. Hence, it is considered fit to quash the order dated 31.01.2013 in Crl.R.P. No.205 of 2012 on the file of the IV Additional Metropolitan Sessions Judge, Hyderabad, on payment of costs of Rs.5,000/- to the Legal Services Authority, Hyderabad, as the matter pertaining to the year 2011 is being restored. However, the petitioner-complainant is directed to be vigilant in pursuing the matter before the trial Court.
9. In the result, the Criminal Petition is allowed quashing the order dated 31.01.2013 passed in Crl.R.P. No.205 of 2012 by the IV Additional Metropolitan Sessions Judge, Nampally, Hyderabad confirming the order dated 06.06.2012 passed in CC No.1233 of 2011 by the III Additional Chief Metropolitan Magistrate, Hyderabad, and restoring CC No.1233 of 2011 to its file, on payment of costs of Rs.5,000/- (Rupees five thousand only) to the Legal Services Dr.GRR,J 6 Crlp.No.2915 of 2013 Authority, Hyderabad, by the petitioner - complainant within a period of fifteen (15) days from the date of this order.
Miscellaneous petitions pending, if any, shall stand closed.
_____________________ Dr. G. RADHA RANI, J January 07, 2022 KTL