Himachal Pradesh High Court
Pooja Sharma vs Suresh Kumar on 4 January, 2019
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Appeal No. 469 of 2018
.
Decided on: 04.01.2019
Pooja Sharma ...Appellant.
Versus
Suresh Kumar ...Respondent.
Coram
The Hon'ble Mr. Justice Vivek Singh Thakur, Judge.
Whether approved for reporting? Yes
For the appellant: Mr. Naresh K. Sharma, Advocate.
For the respondent: None.
Vivek Singh Thakur, Judge. (Oral)
Present appeal has been filed against impugned order dated 23rd July, 2018 passed by learned Judicial Magistrate 1st Class, Court No. III, Ghumarwin, District Bilaspur (hereinafter referred to as "Magistrate") in Criminal Case No. 41-3/2017, whereby the complaint filed by appellant-Pooja Sharma against respondent-Suresh Kumar under Section 138 of the Negotiable Instruments Act (hereinafter referred to as "NI Act"), has been dismissed in default for non-appearance of parties when the case was listed for service of respondent.
::: Downloaded on - 07/01/2019 23:02:17 :::HCHP 22. As the complaint filed by the appellant has been dismissed prior to the service of respondent Suresh Kumar in .
the trial Court and impugned order has been passed in his absence, therefore, it has not been considered appropriate to issue the notice to respondent for the purpose of deciding present appeal. However, record of the trial Court has been summoned and perused.
3. The impugned order passed by the Magistrate is reproduced herein:-
" xxxxxx xxx Called again after lunch. 23.07.2018 Present: None.
The case has been called 56 times since morning, but none appeared for parties. It seems that parties are not interested to pursue the present complaint. It is already 4.00 p.m. Therefore, the present complaint is dismissed in default for non appearance of the parties. The file after its due completion be consigned to record room.
Sd/-
Judicial Magistrate 1st Class Court No. 3,Ghumarwin, District Bilaspur H.P."
4. 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 ::: Downloaded on - 07/01/2019 23:02:17 :::HCHP 3 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.
5. 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 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.
6. 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, notwithstanding 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 ::: Downloaded on - 07/01/2019 23:02:17 :::HCHP 4 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."
7. 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 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.
8. 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:
"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."::: Downloaded on - 07/01/2019 23:02:17 :::HCHP 5
9. 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 accused in invitum.
r to complainant, but, at the same time, it does not mean that if the complainant is absent, the Court has duty to acquit the It has further been held in the said judgment that the discretion under Section 256 CrPC must be exercised judicially and fairly without impairing the cause of administration of criminal justice.
10. 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.
11. 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 ::: Downloaded on - 07/01/2019 23:02:17 :::HCHP 6 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.
12. 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 ::: Downloaded on - 07/01/2019 23:02:17 :::HCHP 7 complaint may not be a proper exercise of power envisaged under Section 256 CrPC.
.
13. 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).
14. 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 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.
15. 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.
16. It is true that Magistrate has a discretion to dismiss the complaint for default resulting into acquittal of the ::: Downloaded on - 07/01/2019 23:02:17 :::HCHP 8 accused. However, in present case, for the discussions made hereinafter, I am inclined to set aside the impugned order.
.
17 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.
18. In present case, complaint was filed on 21.9.2017, whereafter it was listed for 5.10.2017 for recording preliminary evidence. On the basis of preliminary evidence recorded, notice was issued to respondent Suresh Kumar for 28.11.2017.
However, respondent was not served for 28.11.2017, 28.12.2017, 22.2.2018, 26.4.2018 and 7.6.2018 despite issuance of bailable warrants against him. Complainant was duly represented throughout on the aforesaid dates and lastly the case was fixed for 23 rd July, 2018, for which date, as per report of concerned dealing hand in the trial Court, respondent was served personally. However, on 23.7.2018, neither complainant nor his counsel appeared and respondent despite service of execution of bailable warrants upon him has also not put in appearance in Court.
19. 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 - 07/01/2019 23:02:17 :::HCHP 9 was not interested in continuing with the complaint 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.
20. 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 September, 2017 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 - 07/01/2019 23:02:17 :::HCHP 1021. 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 23rd July, 2018, passed by Judicial Magistrate 1st Class, Court No. 3, Ghumarwin District Bilaspur in Criminal Case No. 41-3 of 2017 is set aside and complaint before Judicial Magistrate 1st Class, Court No. 3, Ghumarwin District Bilaspur is ordered to be restored to its original number and directed to be decided in accordance with law.
22. Parties are directed to appear before the Magistrate on 19th February, 2019.
23. Appeal is allowed in above terms alongwith all pending applications, if any.
(Vivek Singh Thakur) Judge January 04, 2019 (ms) ::: Downloaded on - 07/01/2019 23:02:17 :::HCHP