Gauhati High Court
Montu Saikia @ Montu Kumar Saikia vs Syam Sunder Agarwal And Anr on 16 February, 2022
Author: Rumi Kumari Phukan
Bench: Rumi Kumari Phukan
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GAHC010198452019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Pet./956/2019
MONTU SAIKIA @ MONTU KUMAR SAIKIA
S/O- SRI MUKUT SAIKIA, R/O- NEW AMULAPATTY, WARD NO. 10, BHUT
BUNGALOW, P.O- GOLAGHAT, P.S- GOLAGHAT, DIST- GOLAGHAT, ASSAM
VERSUS
SYAM SUNDER AGARWAL AND ANR
PROP OF M/S DOLLY GLASS AND DECOR, SITUATED AT BARUANI BAT
ROAD, P.O- JORHAT, P.S- JORHAT, DIST- JORHAT, ASSAM
2:THE STATE OF ASSAM
REP. BY THE PP
ASSA
Advocate for the Petitioner : MR. B BORA
Advocate for the Respondent : PP, ASSAM (R2)
:: BEFORE ::
HON'BLE MRS. JUSTICE RUMI KUMARI PHUKAN
Date of Hearing & Judgment : 16.02.2022.
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JUDGEMENT AND ORDER (ORAL)
Heard Mr. B. Bora, learned counsel for the petitioner as well as Mr. S.C. Keyal, learned counsel representing respondent no.1. Also heard Mr. B. Sarmah, learned Addl. Public Prosecutor, Assam representing respondent no.2.
2. By way of this petition under Section 482 CrPC read with Article 227 of the Constitution of India, the petitioner has challenged order dated 28.06.2019 passed by the learned Sessions Judge, Jorhat in Criminal Revision No.35/2018.
3. The brief facts of the case is that the respondent Shyam Sunder Agarwal, as complainant instituted a complaint under Section 138 of N.I. Act on 28.09.2016 in the court of learned Chief Judicial Magistrate, Jorhat against the present petitioner Mantu Kumar Saikia. The said complaint came to the file of learned Addl. CJM, for disposal. The learned trial court after taking cognizance of the offence under Section 138 of NI Act, issued process against the accused person and complainant took steps for process and pursuant to the service of notice, the accused persons also on 13.02.2018 and 15.03.2018, by filing petition availed time for entering their appearance. Thereafter, the learned trial court fixed the matter for appearance of the parties before Lok-Adalat for appearance of the parties. However, the complainant did not appear before the Lok-Adalat and also on the next subsequent date fixed by the court i.e. 27.03.2018 before the trial court, hence the learned trial court dismissed the complaint for non-prosecution on 27.03.2018.
4. Challenging the legality, propriety and correctness of the order dated 27.03.2018 passed by the learned trial court, a revision was preferred by the complainant/ respondent no.1 and the learned revisional court by its order dated 28.06.2019 allowed the revision with a direction to the learned trial court to proceed with the case in accordance with law with further direction to the parties to appear before the learned trial court.
5. Assailing the findings of the revisional court, the present petition has been preferred on the ground that the learned Sessions Judge has erroneously passed the impugned order by misinterpreting the provision of law as well as the decision on the point of law.
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6. I have heard the submission of the learned counsel for both the parties and also the impugned orders.
7. According to the learned counsel for the petitioner, no revision is maintainable under Section 397 of the CrPC against the dismissal of order as such dismissal amounts to acquittal of the accused petitioner under Section 256(1) CrPC. The only remedy against the order of acquittal passed under Section 256(1) CrPC is to file an appeal before the appropriate forum under Section 378(4) CrPC. It has been urged before this Court that the learned Sessions Judge has decided the matter by misconstruing the provision of the law laid down under Section 256 and 378 CrPC and hence liable to be set aside and whereas no illegality and infirmity is found in the order passed by the learned trial court dated 27.03.2018 in CR. (NI Case No.63/2016).
8. Learned counsel for the respondent, has however contended that there is no illegality in the order passed by the revisional court as the learned revisional court has given due consideration of the entire aspect of the matter that only for absence of the complainant on two occasions in short interval, learned court should not have dismissed the complaint in a hast without ascertaining as to whether notice of Lok-Adalat has properly served upon the complainant or not. Thus, it is submitted that the complainant/respondent should not be allowed to suffer for his unintentional default before the trial court whereas the case is under Section 138 of NI Act.
9. I have given anxious consideration to the submission of the learned counsel for the petitioner and has gone through the impugned judgment of the revisional court.
10. The learned revisional court has addressed the said issue as regard the respective scope and ambit of Section 256 and 378 CrPC and also held that in the instant matter dismissal of complaint for absence of complainant is an order under Section 256(1) CrPC and although the court specifically has not mentioned that the accused person has been acquitted but dismissal of complaint under Section 256(1) CrPC leads to an inference of acquittal of accused. However, learned revisional court after going through the entirety of the matter, has held, that the Magistrate is supposed to exercise discretion with care and caution while passing the order, that there was no reason for him to think it proper to adjourn the matter to some other Page No.# 4/5 day. The impugned order has been passed and relying on the decision the case of Association Cement Company Ltd. vs. Keshavanand, reported in (1998) 1 SCC 687 wherein it is held that the discretion under Section 256 CrPC must be exercised judicially and fairly without impairing the cause of administration of criminal justice. Thus, persuaded by the fact that non- appearance of the complainant in the Lok-Adalat and his subsequent absence after few days before the trial court may be due to non-service of notice and whereas no proper reason was recorded by the trial court while dismissing the complaint, the revisional court has set aside the impugned order of the trial court with a direction to proceed with the matter.
11. Going by the matters on record, it is undisputed that the summons was served upon the accused persons and they have the knowledge of the case, for which they took time for appearance before the court. The learned revisional court was of view that dismissal of the complaint resulting acquittal of the accused is not on merit, hence revision is maintainable against such order. The observation of the learned revisional court is also proper that while passing order under Section 256 CrPC, the discretion should be exercised judiciously.
12. After hearing the deliberations of both the parties, it appears that the matter is to be decided on the legal aspect as to which provision will be applicable in a case of dismissal of complaint, whether provision of Section 256 or 378 CrPC ?
13. So far as regard the applicability of the provision of Section 256 and 378 CrPC, it would be appropriate to refer to the decisions of the Hon'ble Apex Court in V.K. Bhat vs. G. Ravi Kishore and Another, (2016) 13 SCC 243 and K.B. Vedamurthy vs. M/S. Laxven Chits Pvt. Ltd. 2020 0 Supreme(Kar) 25,. In V.K. Bhat (supra), it has been held that dismissal of the complaint for non-appearance of the complainant amounts to acquittal as contemplated in Section 256 CrPC. Endorsing the aforesaid view in K.B. Vedamurty (supra), it has also been held that where the complaint was dismissed, appeal lies to the High Court under Section 378(4) CrPC and not a revision under Section 379 CrPC and liberty was given to the aggrieved person/complainant to approach to the High Court under Section 378(4) by way of appeal as permitted in V.K. Bhat case. The earlier decision in Association Cement Company (supra) (as discussed by the revisional court) has also been referred wherein it was held that revision petition before the court of Sessions Judge is not maintainable against dismissal of complaint for non-prosecution, same ought to have been challenged before the High Court in Page No.# 5/5 an appeal.
14. Thus, the position of law has been clarified by the aforesaid decisions rendered by the Hon'ble Supreme Court. The learned counsel for the respondent no.1 has also conceded the aforesaid provision of law.
15. Taking note of all above and the legal pronouncement, it can be held that the impugned order dated 28.06.2019 passed by the revisional court in Criminal Revision No.35/2018, is not sustainable and accordingly, same is quashed and set aside with a liberty to the petitioner to prefer an appeal before the appropriate forum as per provision of law.
Criminal petition stands disposed of.
JUDGE Comparing Assistant