Punjab-Haryana High Court
Hardev Singh vs Ajay Arora on 21 February, 2017
Author: Inderjit Singh
Bench: Inderjit Singh
In the High Court of Punjab and Haryana at Chandigarh
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Criminal Appeal No.AS-19 of 2017
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Date of decision:21.2.2017
Hardev Singh
...Appellant
v.
Ajay Arora
...Respondent
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Coram: Hon'ble Mr. Justice Inderjit Singh
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Present: Mr. Rajesh Lamba, Advocate for the appellant.
Mr. Sudarshan Thakur, Advocate for the respondent.
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Inderjit Singh, J.
This appeal has arisen out of the acceptance of Criminal Misc. No.A-1890-MA of 2014 granting leave to file appeal vide order passed today by this Court.
Learned counsel for the parties agree that the appeal may be heard today itself. I have heard learned counsel for the parties in the appeal.
This criminal appeal has been filed against the impugned order dated 22.9.2014 passed by learned Judicial Magistrate Ist Class, Faridabad, vide which the complaint filed by Hardev Singh against Ajay Arora under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as `the NI Act') read with Section 420 IPC has been dismissed in default for want of prosecution.
1 of 5 ::: Downloaded on - 11-07-2017 18:25:30 ::: Cr. Appeal No.AS-19 of 2017 [2] It has been stated in the grounds of appeal that the order dated 22.9.2014 passed by the learned Judicial Magistrate Ist Class, Faridabad is erroneous and unsustainable in the eyes of law and deserves to be set aside in the present appeal. It has been stated that the learned Judicial Magistrate Ist Class, Faridabad, issued summoning order on 5.3.2014 and the respondent was summoned for 4.6.2014. It has been mentioned that the appellant appeared on 4.6.2014 itself and next date of hearing was 22.9.2014, but inadvertently the date noted was 28.9.2014. It has been mentioned that under a bona fide impression that the date is 28.9.2014, neither the appellant nor his counsel appeared on 22.9.2014 as both were under the impression that the next date of hearing was 28.9.2014. As such he and his counsel could not appear before the trial Court and ultimately, the learned trial Court noticing the absence of the counsel for the appellant, dismissed the complaint in default vide impugned order dated 22.9.2014. Therefore, it has been prayed that the impugned order is liable to be quashed/set aside and the complaint of the appellant may be restored to its original number, in the interest of justice.
In this case, notice of motion was issued and the learned counsel for the respondent has put in appearance and contested this appeal.
The complaint was pending before the learned Judicial Magistrate Ist Class, Faridabad on 22.9.2014 for summoning the accused and on one date for the non-appearance of the complainant, this complaint filed under Section 138 of the NI Act read with Section 420 IPC has been dismissed in default vide the impugned order.
2 of 5 ::: Downloaded on - 11-07-2017 18:25:31 ::: Cr. Appeal No.AS-19 of 2017 [3] The learned counsel for the appellant argued that the appellant was regularly appearing in this complaint case and his absence on one of the dates was not intentional. Neither the appellant-complainant nor his counsel could appear before the trial Court on 22.9.2014 due to the fact that inadvertently they had noted a wrong date i.e. 28.9.2014 instead of 22.9.2014. Learned counsel for the appellant argued that the appellant in these proceedings was regularly appearing in the Court and there was no mala fide intention for not appearing before the trial Court.
A perusal of the record also shows that, in no way, by the absence, the complainant/appellant is to be benefitted in this complaint case nor there is anything on the record to show that there was any mala fide intention on the part of the complainant/appellant for his absence from the proceedings. The complainant/appellant has given the ground in the appeal that the complainant and his counsel could not appear before the Court. There was no necessity to dismiss the complaint vide impugned order on that day. The Court has also not considered the fact that earlier the complainant was appearing in this case regularly. The absence of the complainant on one date in the complaint case is no ground to dismiss the complaint.
In the facts and circumstances of the present case, I find that the impugned order dated 22.9.2014 passed by the learned Judicial Magistrate Ist Class, Faridabad, has caused miscarriage of justice. If this order is not set aside, the complainant/appellant will suffer irreparable loss. It is settled law that the rights of the parties should be decided on merit as far as 3 of 5 ::: Downloaded on - 11-07-2017 18:25:31 ::: Cr. Appeal No.AS-19 of 2017 [4] possible. The Court should do substantial justice between the parties and should not go into the technicalities of the law. Where technical consideration and merit or cause of substantial justice are pitted against each other, the cause of merit and substantial justice is to prevail.
Learned counsel for the appellant placed reliance on the judgment of Hon'ble Supreme Court in Mohd. Azeem v. A. Venkatesh and another, (2002) 7 SCC 726, in which it is held that one singular default in appearance on the part of complainant, dismissal of complaint is not proper. Cause shown by the complainant that he wrongly noted the date was not disbelieved and, therefore, it was a valid ground for restoration of the complaint. I have gone through this judgment, which fully applies to the facts of the present case.
Learned counsel for the appellant also placed reliance on the judgment of Hon'ble Supreme Court in Aseem Shabanli Merchant v. Brij Mehra and another, (2005) 11 SCC 412 on the same point, where it is held that dismissal of the complaint for non-prosecution challenged to by brother of the complainant whether such orders can be recalled, it was held that having regard to the facts and circumstances, interests of justice required that the order of the Magistrate acquitting the accused for non-prosecution, as affirmed by the High Court, deserved to be recalled so that the complaints could be tried on merits. The Hon'ble Supreme Court further held in this case that there is no hard and fast rule for recalling of such orders.
On the same point, learned counsel for the appellant also placed 4 of 5 ::: Downloaded on - 11-07-2017 18:25:31 ::: Cr. Appeal No.AS-19 of 2017 [5] reliance on the judgments of this Court in Narender Parashar v. Jagbir Singh, 2009 (3) R.C.R. (Cr.) 246; Neh Pal Sharma v. Bijender Singh, 2009 (2) R.C.R. (Cr.) 751 and Purushotam Mantri v. Vinod Tandon alias Hari Nath Tandon, 2009 (1) R.C.R. (Cr.) 442; Om Parkash v. M/s Golden Forest India Ltd., 2008 (4) R.C.R. (Cr.) 445. I have gone through all these judgments, which fully apply to the facts of the present case.
Therefore, from the above, I find merit in this appeal and the same is allowed. The impugned order passed by the learned Judicial Magistrate Ist Class, Faridabad, dismissing the complaint in default is set aside.
This complaint is ordered to be restored at the stage from where it was dismissed by the trial Court. The trial Court is directed to proceed further as per law after giving notice to the parties concerned.
The parties are directed to appear before the trial Court on 24.3.2017.
February 21, 2017. (Inderjit Singh)
Judge
*hsp*
NOTE: Whether speaking/reasoned: Yes
Whether reportable: No
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