Dismissed

Ramswaroop Vishwakarma v. State of Up and Another

Allahabad HC16 Jul 2024A482/14187/2024

Case brief

AI extract

What is this about?

The High Court dismissed an application under Section 482 Cr.P.C. challenging a revisional order. Upholding the lower court's view, it held that revision is maintainable against a Section 203 Cr.P.C. order dismissing a cheque bounce complaint merely for non-appearance, and remanded the matter for trial.

What did the court decide?

Instant application under Section 482 Cr.P.C. dismissed; impugned order allowing revision stands confirmed; matter remanded to trial court.

Ramswaroop Vishwakarma vs State of Up and Another — Cheque Dishonour | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC:113308

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HIGH COURT OF JUDICATURE AT ALLAHABAD

(Sl No.10)

Court No. - 79

Case :- APPLICATION U/S 482 No. - 14187 of 2024

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Applicant :- Ramswaroop Vishwakarma Opposite Party :- State of U.P. and Another Counsel for Applicant :- Harish Chandra Mishra Counsel for Opposite Party :- G.A.

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Hon'ble Anish Kumar Gupta,J.

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1. Heard Sri Harish Chandra Mishra, learned counsel for the applicant and Sri Rajeev Kumar Singh, learned A.G.A. for the State.

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2. The instant application has been filed assailing the judgement and order dated 19.02.2024, passed by the Additional Sessions Judge/Special Judge (Essential Commodities Act), Jhansi, in Criminal Revision No. 187 of 2023 (Sunil Gupta vs. State of U.P. and Another), whereby the Revision Application, filed by the opposite party no.2 against the judgement and order dated 03.07.2023 passed in Complaint Case No. 16583 of 2022 filed by the opposite party no.2 under Section 138 of the Negotiable Instruments Act, 1881 (in short, ' the N.I. Act '), was set-aside by the Revisional Court and the matter was remanded back to the trial court to proceed in the complaint case in accordance with law.

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3. Learned counsel for the applicant submits that the opposite party no.2 has filed a complaint case under Section 138 of the N.I. Act for dishonor of cheque, allegedly issued by the applicant herein. The same was dishonored with the remarks " Account Dormant ". The legal notice was issued by the opposite party no.2, which was received by the applicant herein and thereupon the complaint case under Section 138 of the N.I. Act was filed on non-compliance of the demand notice.

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4. Vide order dated 03.07.2023, the complaint case of the opposite party no.2 was dismissed under Section 203 Cr.P.C. as none was appearing on behalf of the opposite party no.2 before the trial court concerned. However, it is pertinent to mention

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that the same was not dismissed on merits. Against the aforesaid order dated 03.07.2023, Revision was filed by the opposite party no.2 which was allowed by impugned order dated 19.02.2024.

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5. Learned counsel for the applicant submits that the Revision has been allowed relying upon the submission made by the opposite party no.2, that complaint was filed under Section 138 of the N.I. Act and all the relevant documents as well as statements under Section 200 Cr.P.C. was filed by way of an affidavit. It was the duty of the learned trial court to consider the material available on record and proceed in the matter with regard to summoning of the accused. Learned counsel for the applicant submits that the trial court cannot be held to be wrong while dismissing the complaint for non-prosecution or for want of the presence of the complainant or his advocate at the time of summoning.

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6. Learned counsel for the applicant further submits that the complaint was dismissed for want of prosecution on behalf of the opposite party no.2 and revision was not maintainable. Hence, he has prayed for quashing of the impugned order passed by the Revisional Court.

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7. Per contra , learned A.G.A. for the State relying upon the judgement of the Apex Court submits that in Jitendra Singh vs. Ranjeet Kaur : 2001 Cr. L.J. 1015 (SC), it been categorically held by the Apex Court that against the dismissal of the complaint case under Section 203 Cr.P.C., the Criminal Revision is maintainable.

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8. Learned A.G.A. further submits that since all the material before the trial court was already available including the statement under Section 200 Cr.P.C., therefore, it was the duty of the trial court to peruse the record and record the findings whether a prima facie case is made out or not and then pass an order on merits of the case. Merely, because the complainant was not present the complaint under Section 138 of the N.I. Act, cannot be dismissed.

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9. Having heard the rival submissions made by learned counsels for the parties, this Court has carefully perused the records. From the records of the case it appears that so far as the maintainability of the Revision Petition is concerned, in view of the Apex Court's judgement in Jitendra Singh (supra) , this Court does not have any doubt that the Revision Petition before the Additional Sessions Judge was maintainable against an order passed under Section 203 Cr.P.C. Since, the complaint was dismissed merely on the non-presence of the opposite party

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no.2 or his advocate, therefore, the said order was not passed on merits and the same was not based on any material.

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10. Therefore, in the considered opinion of this court the Revisional Court has rightly allowed the Revision Petition and remitted the matter back to the trial court for proceeding further in accordance with law.

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11. In view thereof, the instant application fails and is accordingly dismissed .

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Order Date :- 16.7.2024 Shubham Arya

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(Anish Kumar Gupta, J.)

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Digitally signed by :- SHUBHAM ARYA High Court of Judicature at Allahabad

Ramswaroop Vishwakarma v. State of Up and Another

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Ramswaroop Vishwakarma v. State of Up and Another

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