Himachal Pradesh High Court
______________________________________________________________________ vs Shri Bodh Raj .....Accused-Respondent on 14 December, 2017
Bench: Sanjay Karol, Ajay Mohan Goel
1
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Appeal No.: 471 of 2017
Reserved on: 23.11.2017
.
Date of Decision: 14.12.2017
______________________________________________________________________
Shri Puran Chauhan alias Puran Chand,
son of late Shri Mangal Chand (since
deceased) through his legal heirs Shri Mahesh Kumar
and others .....Complainants-appellants.
Vs.
Shri Bodh Raj .....Accused-respondent.
Coram:
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge
Whether approved for reporting?1 No.
For the appellants: Mr. Bhupender Gupta, Senior Advocate,
with Mr. Neeraj Gupta, Advocate.
For the respondent: Mr. Sanjay Jaswal, Advocate.
Ajay Mohan Goel, Judge:
By way of this appeal, the appellants have challenged order, dated 16.01.2017, passed by the Court of learned Judicial Magistrate, 1st Class, Anni, District Kullu, H.P. in Case No. 61-3 of 2013, whereby learned Court below while disposing of an application so filed before it under Section 256(1) of the Code of Criminal Procedure, proceeded to dismiss the complaint by holding that as no application by a competent person entitled to continue the lis after the death of original Whether the reporters of the local papers may be allowed to see the Judgment?
::: Downloaded on - 20/12/2017 23:04:39 :::HCHP 2complainant was before the Court, therefore, the Court had to proceed with the assumption that the complainant was absent.
2. Brief facts necessary for the adjudication of the present .
appeal are that a complaint was filed under Section 138 (1) read with Section 142 of the Negotiable Instruments Act, 1981 by Shri Puran Chauhan, son of late Sh. Mangal Chand against the present respondent, alleging therein that the complainant was an authorized agent of M/s Harkrishan Lal Baldev Rai Fruit Commission Agents, B-214, New Subzi Mandi Azaadpur, Delhi-33 and under the authority as an authorized agent of the said firm, he had supplied materials like Empty Cartons, Trays, Strapping Machines and Strapping Rolls etc. to the apple growers, including the respondent/accused, who in lieu of the same, had issued a Cheque bearing No. 652401 amounting to `7,80,000/- dated 14.12.2012 payable at State Bank of Patiala. It was further the case of the complainant that the Cheque was duly presented by him in the bank concerned for encashment, but the same was returned back to the complainant on 11.01.2013 with the remarks "Funds Insufficient".
Thereafter, he issued a statutory legal notice, as required and when even then the accused did not make good the payment, he had no option but to file the complaint under Section 138(1) read with Section 142 of the Negotiable Instruments Act.
3. During the pendency of the complaint, original complainant died. After his death, an application was filed before the ::: Downloaded on - 20/12/2017 23:04:39 :::HCHP 3 learned Court below under Section 256(1) of the Code of Criminal Procedure for substitution of deceased complainant with Sh. Lok Raj Sharma, son of Sh. Tara Chand Sharma, resident of Village Rrewari, P.O. .
Dalash, Tehsil Anni, District Kullu. It was averred in the said application that the original applicant was pursuing the complaint on behalf of original complainant, i.e., M/s. H.B. Delhi New Sabzi Mandi Azaadpur Delhi, as authorized attorney/representative of the same. It was further mentioned in the application that as authorized representative had expired and the original complainant being based in Delhi and was not personally in a position to proceed with the proceedings, it had authorized and appointed Sh. Lok Raj Sharma (supra) as its duly authorized agent/representative to pursue the matter on its behalf before the Court. Accordingly, a prayer was made to allow Sh. Lok Raj Sharma, son of Sh. Tara Chand Sharma to further pursue the case on behalf of the original complainant or in the alternative to allow the original complainant to pursue the case itself.
4. The application so filed was opposed by the respondent inter alia on the ground that the application was not maintainable, as the complaint stood instituted by late Shri Puran Chauhan not in his capacity as authorized representative of firm called M/s. H.B. Delhi, but in his own capacity and further, no document was produced on record to demonstrate that deceased complainant had any legal capacity to sue on behalf of the firm in issue.
::: Downloaded on - 20/12/2017 23:04:39 :::HCHP 45. Learned Court below vide impugned order, dated 16.01.2017, dismissed the application so filed under Section 256(1) of the Code of Criminal Procedure and thereafter went on to hold that as there .
was no application before the Court filed by a competent person entitled to continue the complaint, therefore, the Court had to proceed on the assumption that the complainant was absent and on these basis, the accused was ordered to be acquitted.
6. Feeling aggrieved, this appeal stands filed by the legal heirs of deceased Puran Chauhan.
7. Impugned order, dated 16.01.2017, stands assailed inter alia on the ground that while a hypertechnical approach was adopted by the learned trial Court in dismissing the application filed before it under Section 256(1) of the Code of Criminal Procedure and even if the learned Court below had come to the conclusion that the application so preferred before it under Section 256(1) was not by persons who could have pursued the cause on behalf of the deceased complainant, then also, rather than dismissing the case on the assumption that the complainant was not present, at least one opportunity should have been given to the present appellants, i.e., the legal heirs as well as legal representatives of deceased Puran Chauhan to pursue the cause on behalf of deceased Puran Chauhan and had they failed to do so, then the learned trial Court could have had proceeded in accordance with law. Accordingly, it has been prayed by Mr. Neeraj ::: Downloaded on - 20/12/2017 23:04:39 :::HCHP 5 Gupta, learned counsel appearing for the appellants that the impugned order, dated 16.01.2017, be set aside and the appellants be granted an opportunity to file appropriate application to bring them on record as .
legal representatives of deceased Puran Chauhan before the learned Court below and thereafter, pursue the case in said capacity.
8. On the other hand, Mr. Sanjay Jaswal, learned counsel appearing for the respondent while supporting the impugned order, has argued that there was no infirmity with the order so passed by the learned trial Court and even otherwise, as the respondent stands acquitted by the learned Court below, therefore, no interference in the order so passed, is called for in view of the law laid down by the Hon'ble Supreme Court in S. Rama Krishna Vs. S. Rami Reddy (Dead) by his LRs. and others, (2008) 5 Supreme Court Cases 535 and Ghurey Lal Vs. State of Uttar Pradesh, (2008) 10 Supreme Court Cases 450.
9. I have heard the learned counsel for the parties and have also gone through the order dated 16.01.2017, passed by the learned Court below as well as the records of the case.
10. It is not in dispute that the original complaint was filed by Shri Puran Chauhan. It is also not in dispute that in the complaint, it was so stated by the complainant that he was an authorized agent of M/s. Harkrishan Lal Baldev Rai Fruit Commission Agents, B-214, New Subzi Mandi Azadpur, Delhi-33. It is also not in dispute that it was not mentioned in the said complaint that the same was being filed on behalf ::: Downloaded on - 20/12/2017 23:04:39 :::HCHP 6 of M/s. Harkrishan Lal Baldev Rai Fruit Commission Agents. It is also a matter of record that the disputed Cheque stood issued by the accused in favour of Sh. Puran Chauhan, the deceased complainant. Appellants .
before this Court are the widow, sons and daughters of late Shri Puran Chauhan. After the death of Shri Puran Chauhan, an application was filed before the learned trial Court under Section 256(1) of the Code of Criminal Procedure, 1973 to bring on record Sh. Lok Raj Sharma, son of Sh. Tara Chand Sharma, duly constituted General Power of Attorney of M/s. H.B. Delhi, New Sabzi Mandi Azaadpur Delhi on the averments that the complaint was being pursued by Shri Puran Chauhan as the authorized agent of M/s. H.B. Delhi, New Sabzi Mandi Azaadpur Delhi and after his death, the same may be permitted to be pursued by its General Power of Attorney Shri Lok Raj Sharma. This application so filed before the learned trial Court was rejected by the learned trial Court by inter alia holding that the complaint was filed by Shri Puran Chauhan in his sole name and in his individual capacity and not on behalf of H.B. Delhi as its authorized agent and further that the cheque in question was also issued in the name of Shri Puran Chauhan and, therefore, liability of the accused, if any, was towards Shri Puran Chauhan and not towards M/s. H.B. Delhi. Learned trial Court further went on to hold that the original complaint had been filed by late Shri Puran Chauhan in his individual capacity and cheque amount was stated to be owed to him and therefore, firm M/s. H.B. Delhi does not come into picture and Shri ::: Downloaded on - 20/12/2017 23:04:39 :::HCHP 7 Chander Prakesh Narula, alleged partner of the same, had no locus standi to continue the same either personally or through its authorized agent.
Incidentally, Sh. Chander Prakash Narula, who had filed such an .
application before the learned trial Court has not assailed this order.
Therefore, findings returned by the learned trial Court to the effect that Chander Prakash Narula had no locus standi to file and maintain the said application, are not subject matter of the present appeal. What is the subject matter of the present appeal is the subsequent order of the learned trial Court, whereby the said Court after dismissing the application so filed by Shri Chander Prakesh Narula, went on to proceed with the matter as if the complainant was not present before the Court, by drawing an assumption in this regard under the provisions of Section 256 of the Code of Criminal Procedure, whereafter it acquitted the accused and thus dismissed the complaint.
11. In my considered view, findings returned by the learned trial Court to the effect that because there was no application by a competent person entitled to continue the present complaint filed before the Court, therefore, it was a case where the Court would have to proceed under Section 256(1) of the Code of Criminal Procedure on the assumption that the complainant is absent, are perverse findings. This is for the reason that learned trial Court has construed the provisions of Section 256(1) of the Code of Criminal Procedure in a hypertechnical manner.
::: Downloaded on - 20/12/2017 23:04:39 :::HCHP 812. Admittedly, here it was not a case where after the death of the complainant, none was before the Court to pursue the matter. An application was filed under Section 256(1) of the Code of .
Criminal Procedure, bonafidely, by one Shri Chander Prakash Narula, who had made a prayer that he may be permitted to continue the complaint either on behalf of M/s. H.B. Delhi or through its General Power of Attorney.
13. In my considered view, because when there was someone representing the cause, whom the learned Court below found to be having no locus to continue the cause, then the least which was expected from the learned Trial Court was to have had afforded al least one opportunity to legal heirs/regal representatives of deceased Puran Chauhan to pursue the matter by moving an appropriate application and had they not done so even after grant of opportunity, then the Court could have had passed appropriate orders. I say this for the reason that it is apparent from the impugned order itself that the learned trial Court had returned a definite finding that the complaint stood filed by Shri Puran Chauhan in his individual capacity and further because the checque was drawn in his name, therefore, liability of the accused, if any, was towards late Shri Puran Chand. Having recognized this fact, learned trial Court erred in not correctly appreciating the mandate and scope of the provisions of Section 256 of the Code of Criminal Procedure. A perusal of the said Section demonstrates that the same contemplates that ::: Downloaded on - 20/12/2017 23:04:39 :::HCHP 9 if summon 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, acquit the accused, unless for some reason he thinks it proper to adjourn the hearing of the case to some other day. Proviso to the said sub-section contemplates that where 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. Sub-section (2) of the said Section provides that the provisions of sub-section (1) shall also apply where "the non-appearance of the complainant is due to his death".
14. Admittedly, here is a case where even as on the date when the application so filed under Section 256(1) of the Code of Criminal Procedure was dismissed by the learned trial Court, learned counsel, who earlier was also appearing for the complainant was before the Court.
Zimini orders of the learned trial Court demonstrate that deceased Sh.
Puran Chauhan was being represented by Sh. S. Kumar, Advocate, who later on filed an application under Section 256(1) of the Code of Criminal Procedure. Besides this, sub-section (1) of Section 256 even otherwise confers discretion upon the Magistrate that if the complainant was not present before it, then besides acquitting the accused, it has power to ::: Downloaded on - 20/12/2017 23:04:39 :::HCHP 10 adjourn the hearing of the case to some other day, but for reasons which are to be assigned.
15. In my considered view, in the peculiar facts and .
circumstances of the case, learned trial Court, in the interest of justice should have had adjourned the hearing of the case to some other day and should have called upon the learned counsel, who had filed the application under Section 256(1) of the Code of Criminal Procedure, to file an appropriate application and if even thereafter no steps in this regard would have been taken by the present appellants, then obviously, learned trial Court could have had went ahead and acquitted the accused. Failure on the part of the learned Court below in exercising the discretion so vested in it, in the peculiar facts of the case, has resulted in travesty of justice. The hypertechnical approach which has been adopted by the learned trial Court is not appreciated by this Court. It has to be understood by the Courts that the aim of the Court is advancement of justice and not scuttling the rights of parties by adopting a hypertechnical view.
16. While respectfully agreeing with the preposition laid down by the Hon'ble Supreme Court in the judgments, which have been so relied upon by the learned counsel for the respondent, I hold that the said judgments have no applicability in the facts of the present case. The Hon'ble Supreme Court in judgments referred above has laid down the principle as to what parameters have to be adopted by the appellate ::: Downloaded on - 20/12/2017 23:04:39 :::HCHP 11 Court while interfering in the judgments of acquittal passed in favour of accused. This is not a case where the learned trial Court has passed a judgment of acquittal in favour of the respondent on merit. As already .
held above, the complaint was dismissed/accused was acquitted by the learned trial Court by totally misreading and mis-appreciating the scope of the provisions of Section 256(1) of the Code of Criminal Procedure by adopting a hypertechnical view and, therefore, the judgments so cited by the learned counsel for the respondent are of no assistance as far as facts of the present case are concerned.
17. In view of above discussion, this petition is allowed.
Impugned order, dated 16.01.2017, is set aside and the case is remanded back to the learned Trial Court with the direction that it shall afford an opportunity to the present appellants to move an appropriate application to implead them as complainants in the case, in place of deceased Puran Chauhan, in their capacity as his legal representatives. It is clarified that the application which shall be so filed by the appellants, shall be decided by the learned trial Court on its own merit, in accordance with law, without being influenced in any manner by any observation which has been made by this Court. Parties through their counsel are directed to appear before the learned Trial Court on 15th January, 2018, on which date, appellants shall file appropriate application before the learned trial Court. It is clarified that in case the appellants are not able to move such application on the date so fixed by this Court, then only one more ::: Downloaded on - 20/12/2017 23:04:39 :::HCHP 12 opportunity in this regard shall be granted by the learned trial Court and if even after grant of one further opportunity, no such application is filed, then the learned trial Court shall pass appropriate orders in the case.
.
Appeal stands disposed of in above terms, so also
miscellaneous application(s), if any.
(Ajay Mohan Goel)
Judge
December 14, 2017
(bhupender)
r to
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