Punjab-Haryana High Court
Mohd. Sakil vs Sachin Saini on 12 September, 2013
Author: Ram Chand Gupta
Bench: Ram Chand Gupta
CRM No.M-5875 of 2010 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH.
Crl. Misc. No. M-5875 of 2010 (O&M)
Date of Decision: September 12, 2013.
Mohd. Sakil
..........PETITIONER(s).
VERSUS
Sachin Saini
..........RESPONDENT(s).
CORAM:- HON'BLE MR. JUSTICE RAM CHAND GUPTA
Present: Mr. Karan Bhardwaj, Advocate
for the petitioner.
Mr. D.S. Adlakha, Advocate
for the respondent.
*******
RAM CHAND GUPTA, J.(Oral)
The present petition has been filed under Section 482 of Code of Criminal Procedure (for short 'Cr.P.C.') for quashing of order dated 28.11.2009 passed by Judicial Magistrate 1st Class, Jagadhari vide which complaint filed by petitioner-complainant for the offence under Section 138 of Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act') was dismissed in default for want of prosecution.
I have heard learned counsel for the parties and have gone through the impugned order passed by learned trial Court.
Briefly stated, petitioner-complainant filed a complaint under Mehta Sachin 2013.09.16 10:58 I attest to the accuracy and integrity of this document CHANDIGARH CRM No.M-5875 of 2010 -2- Section 138 of the Act on the plea that respondent-accused issued a cheque bearing No.403578 dated 27.10.2006 for a sum of `2,00,000 drawn on H.D.F.C. Bank, Yamuna Nagar as part payment in favour of the complainant and handed over the same to the complainant with the assurance that the aforesaid cheque would be honoured and encashed. However when the same was presented, the same was returned with the remarks "payment stopped by the drawer". After issuing requisite notice, the complaint was filed. Respondent-accused was summoned. The complaint was fixed for evidence of petitioner-complainant when none appeared for the complainant and hence, the following order was passed by the Magistrate:-
"Today the case was fixed after notice for evidence of the complainant. Despite repeated calls since morning none appeared on behalf of the complainant. It is already 2.30 p.m. No further wait is justified. In the option of the court complainant is not interested for pursuing the present complaint as none has appeared on his behalf. Hence the present complaint is hereby dismissed in default for want of prosecution. File after needful be consigned to the record room."
It has been contended by learned counsel for the petitioner- complainant that it was first default on the part of petitioner-complainant and that hence, complaint should not have been dismissed by learned Magistrate.
On the other hand, it has been stated by learned counsel for Mehta Sachin 2013.09.16 10:58 I attest to the accuracy and integrity of this document CHANDIGARH CRM No.M-5875 of 2010 -3- the respondent-accused that he has been falsely involved in this case and that he was appearing and facing the agony of protracted trial since 18.01.2007 and that the complaint was also going on for evidence of complainant since 1.7.2008 and about eight opportunities had already been availed by the complainant for his evidence and however, deliberately no witness was examined and hence, he was harassed. It is also contended that dismissal of complaint for want of appearance of complainant amounts to acquittal of accused under Section 256(1) of Cr.P.C. and that hence, remedy available to the petitioner-complainant was to file appeal against acquittal before this Court under Section 378(4) Cr.P.C. and however, instead of availing said remedy as per settled proposition of law, the present petition under Section 482 Cr.P.C. has been filed which is not maintainable.
It has been further contended by learned counsel for the petitioner-complainant that the present petition under Section 482 Cr.P.C, is also maintainable and on the point, he has placed reliance upon Standard Corporation India Limited Vs. Kamblekar Ramesh 2011(4) R.C.R. (Criminal) 564.
However, perusal of this judgment shows that it was an appeal directed by the complainant against the judgment passed by learned trial Court vide which complaint filed by the complainant under Section 138 of the Act was dismissed for non-prosecution. He also placed reliance upon another judgment passed by Co-ordinate Bench of Mehta Sachin 2013.09.16 10:58 I attest to the accuracy and integrity of this document CHANDIGARH CRM No.M-5875 of 2010 -4- this Court in Parle Biscuits (P) Ltd Vs. M/s Sandeep Marketing Company and another 2011(4) R.C.R. (Criminal) 687, wherein challenge was to the order vide which application for restoration of complaint was dismissed in default.
In my view, there is force in the argument of learned counsel for the respondent-accused. Law is well settled that if a complaint under Section 138 of the Act is dismissed in default due to non-appearance of complainant, the same amounts to acquittal and complainant is having right of appeal under Section 378(4) Cr.P.C. Hence, neither revision nor petition under Section 482 Cr.P.C. is maintainable without availing statutory right of appeal as provided under Section 378(4) Cr.P.C. Learned counsel for respondent-accused also placed reliance on a judgment of this Court in Balbir Kaur Aujla Vs. Balraj Singh 2006(2) R.C.R. (Criminal) 650; another judgment passed by Delhi High Court in M/s Becton Dickinson India Ltd. Vs. M/s Shika Pharma (P) Ltd. And another 2010(5) R.C.R. (Criminal) 735 and another judgment passed by Bombay High Court (Aurangabad Bench) in Vinaykumar Vs. Ramesh Saboo 2009(5) R.C.R. (Criminal) 164.
In view of the afore-mentioned legal proposition, the present petition is not sustainable and hence, the same is, hereby, dismissed being not maintainable.
( RAM CHAND GUPTA ) September 12, 2013. JUDGE Sachin M. Mehta Sachin 2013.09.16 10:58 I attest to the accuracy and integrity of this document CHANDIGARH