Himachal Pradesh High Court
Rattan Bahadur vs Bhupender Singh on 25 November, 2022
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Appeal No. 310 of 2021
.
Decided on: 25.11.2022
Rattan Bahadur ...Appellant.
Versus
Bhupender Singh ...Respondent.
Coram
The Hon'ble Mr. Justice Vivek Singh Thakur, Judge.
Whether approved for reporting?
For the appellant: Ms. Ruchika Khachi, Advocate.
For the respondent: None.
Vivek Singh Thakur, Judge. (Oral)
Serving HHC Devinder Singh No. 1065 of Police Station Dhalli is present in person. It has been reported that proclamation issued against the respondent has been duly executed for 24.11.2022. There is no representation on behalf of respondent.
2 At this stage, it has also been pointed out, as also evident from perusal of record of Trial Court, that though Trial Court had taken cognizance and issued notice to respondent, however despite issuing summons, bailable warrants and non-
bailable warrants repeatedly, respondent could not be served ::: Downloaded on - 28/11/2022 20:31:43 :::CIS 2 and impugned order dated 10.5.2018 was passed by Trial Court after issuance of notice to respondent but before his .
service and appearance, therefore, I am of considered opinion that presence of respondent for adjudication of present petition, which has arisen out of an order passed before service of respondent, is not necessary.
3 Present appeal has been filed against impugned order dated 10th May, 2018 passed by learned Judicial Magistrate First Class, Court No. I, Solan, District Solan (hereinafter referred to as "Magistrate") in Criminal Case No. 288/3 of 2016/13, whereby the complaint filed by petitioner Rattan Bahadur against respondent-Bhupinder Singh under Section 138 of the Negotiable Instruments Act (hereinafter referred to as "NI Act"), has been dismissed in default for non-
appearance when the case was listed for service of respondent.
4. The impugned order passed by the Magistrate is reproduced herein:-
"10.5.2018 Present:- None for complainant.
None for accused.
Case called time and again but none has appeared on behalf of the complainant despite knowledge of date of hearing. Put up at 12:35 PM.
Sd/-
(Pratibha Negi) Case called again at 12:35 PM ::: Downloaded on - 28/11/2022 20:31:43 :::CIS 3 10.05.2018 Present: As above.
Be put up after lunch hours.
.
Case called again after lunch Present: As above Case called time and again but none has appeared on behalf fo the complainant despite knowledge of date of hearing. It is 3:45 PM. Hence it is presumed that complainant has nothing to say in the present matter. Hence, present case is dismissed for non-prosecution. File after due completion be consigned to record room.
Sd/-
r Judicial Magistrate First Class
Solan H.P."
5. In view of Section 143 of the NI Act, offence under Section 138 of the 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 "CrPC") is applicable during the trial initiated on filing a complaint under Section 138 of the NI Act. In this Chapter, Section 256 CrPC deals with a situation of non-appearance or death of complainant.
6. I am in agreement with finding returned 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 Plantations ::: Downloaded on - 28/11/2022 20:31:43 :::CIS 4 Pvt. Ltd. & another, reported in 2008 (2) Latest HLJ 1249 with respect to applicability of Section 256 CrPC in a complaint .
filed under Section 138 of the NI Act.
7. I deem it proper to reproduce Section 256 CrPC 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, rnotwithstanding 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."
8. Section 256 CrPC 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 ::: Downloaded on - 28/11/2022 20:31:43 :::CIS 5 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.
9. 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 CrPC, which reads as under:
r "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."
10. 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 CrPC, 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 ::: Downloaded on - 28/11/2022 20:31:43 :::CIS 6 judgment that the discretion under Section 256 CrPC must be exercised judicially and fairly without impairing the cause of .
administration of criminal justice.
11. 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.
12. 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 CrPC 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 witnesses on behalf of the defence, the apex Court has considered as to whether provisions of Section 256 CrPC, 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 CrPC, the Court was required to pass a judgment on merit in the matter.
::: Downloaded on - 28/11/2022 20:31:43 :::CIS 713. 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 CrPC.
14. 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).
15. 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, 2017, has ::: Downloaded on - 28/11/2022 20:31:43 :::CIS 8 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.
16. The same principle has been reiterated by this Court in cases titled Dole Raj Thakur versus Pankaj Prashar, reported in Latest HLJ 2018(HP) 266; Dole Raj Thakur versus Jagdish Shishodia, reported in Latest HLJ 2018 (HP) 296 and in Cr. Appeal No. 301 of 2018 titled Hemant Kumar vs. Sher Singh decided on 27.9.2018.
17. It is true that Magistrate has a discretion to dismiss the complaint for default resulting into acquittal of the accused. However, in present case, for the discussions made hereinafter, I am inclined to set aside the impugned order.
18 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.
19. In present case, complaint was filed on 8.2.2013.
On 7.4.2016 it was assigned to Judicial Magistrate First Class, Solan by learned Sessions Judge, Solan. Thereafter, matter was listed before Judicial Magistrate First Class, Solan on 19.4.2016 and on the basis of material on record, after taking cognizance, notice was issued to respondent Bhupinder for ::: Downloaded on - 28/11/2022 20:31:43 :::CIS 9 11.8.2016. However, respondent could not be served for 11.8.2016, 20.10.2016, 28.12.2016, whereupon bailable .
warrants were issued against respondent on 25.2.2017 for 26.4.2017, however bailable warrants could not be served/executed upon respondent for 26.4.2017, 23.6.2017 and thereafter, Trial Court had ordered to issue non-bailable warrants to produce respondent for 21.8.2017. But non-
bailable warrants also remained unserved for 21.8.2017 and 27.10.2017, and as such despite issuance of summons, bailable warrants and non-bailable warrants, respondent was not served till 10.5.2018.
20 On 10.5.2018, when case was listed for service of respondent, neither complainant nor his counsel attended the Court, resulting into passing of impugned order. It has been submitted on behalf of petitioner that he had engaged his counsel for pursuing the case. He did not come to attend the Court on 10.5.2018 as on that day, he had to go Nepal as his mother was serious and bed ridden but he could not convey this fact to his counsel, and on that day, due to pre-occupation in another Court, the counsel also could not appear in Court and in these circumstances, impugned order has been passed.
21. In aforesaid facts, particularly when complainant continued himself to be represented either through counsel or in person, the observation of the Magistrate that complainant ::: Downloaded on - 28/11/2022 20:31:43 :::CIS 10 has nothing to say in the matter, is contrary to the record. In normal circumstances, no complainant will be disinterested in .
pursuing his complaint without any reason. In the given circumstances, it was a fit case for the Magistrate to exercise her discretion to adjourn the cae for a subsequent date.
22. In view of the aforesaid facts and circumstances and the ratio of law laid down by the apex Court and High Courts including this Court, I am of the opinion that the Magistrate was not justified in dismissing the complaint in default for absence of complainant coupled with failure of his counsel to attend the case on that date, particularly, when the complainant was pursuing his case since February 2013 and has led preliminary evidence in support of his complaint and was being represented through counsel on numerous dates fixed for service of respondent through bailable warrants. It is also a fact that the date on which the case has been dismissed in default was listed for service of respondent and on that day, personally presence of complainant was not necessary especially when he had already engaged the counsel to represent him and the said counsel was regularly appearing before the Magistrate but except the date of passing of impugned order.
::: Downloaded on - 28/11/2022 20:31:43 :::CIS 1123. For aforesaid discussion, I am of the considered opinion that there is merit in the appeal and the same .
deserves to be allowed. Accordingly, the appeal is allowed and impugned order, dated 10th May, 2018, passed by Judicial Magistrate First Class, Court No.1, Solan District Solan in Criminal Case No. 288-3 of 2016/2013, titled Rattan Bahadur vs. Bhupinder Singh is set aside and complaint before Judicial Magistrate First Class, Court No. 1, Solan District Solan is ordered to be restored to its original number and directed to be decided in accordance with law.
24. Parties are directed to appear before the Magistrate on 20th December, 2022. Registry is directed to send records immediate to the Magistrate.
25. Appeal is allowed in above terms alongwith all pending applications, if any.
(Vivek Singh Thakur) Judge November 25, 2022 (ms) ::: Downloaded on - 28/11/2022 20:31:43 :::CIS