Allowed

M/S Deepak Kumar v. M/S Vinod Kirana Stores and Anr.

Chhattisgarh HC15 Sept 2023ACQA/261/2010

Case brief

AI extract

What is this about?

The High Court allowed the appeal against the trial court's order dismissing a Section 138 NI Act complaint for want of prosecution. Holding that dismissal was not warranted for a bona fide mistake, the court set aside the acquittal and directed the trial court to proceed with the case on merits.

What did the court decide?

Impugned order dismissing the complaint for want of prosecution set aside; trial court directed to proceed with the case.

M/S Deepak Kumar Vs M/S Vinod Kirana Stores and Anr. — Cheque Dishonour | Chhattisgarh HC (2023)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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ACQA No. 261 of 2010 Judgment reserved on : 03/08/2023 Judgment delivered on : 15/09/2023

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M/s. Deepak Kumar Prakash Kumar Nemichand Gali, Raipur 492001 (CG)

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---- Appellant

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Versus

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M/s. Vinod Kirana Store Post, Tahsil & Thana Balrampur DistrictSurguja (C.G.).

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Shri Vinod Kumar Gupta- Proprietor- M/s. Vinod Kirana Store, Post, Tahsil & Thana Balrampur, District- Surguja (C.G.)

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---- Respondents

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For Appellant : Mr. Raja Sharma, Advocate For Respondents : Mr. A.N. Pandey, Advocate

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Hon'ble Smt. Justice Rajani Dubey CAV Judgment

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This appeal is preferred against the order dated 15.01.2009 passed by the learned Judicial Magistrate First Class, Raipur (C.G.) in Criminal Case No. 129/2006 whereby the learned trial Court acquitted the respondent/accused of the offence under Section 138 of the Negotiable Instruments Act, 1881 while dismissing the case for want of prosecution.

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Brief facts of the case are that the complainant/appellant filed complaint under Section 138 of the Negotiable Instruments Act against the respondents/accused stating that respondent No.1 is a

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firm and respondent No.2 is proprietor of the firm. Accused/respondents towards payment of debt issued Cheque No. 0166737 dated 05.03.2001 for Rs.5,000/-, Cheque No. 0166741 dated 10.05.2001 for Rs.6,000/- and Cheque No. 0166742 dated 30.05.2001 for Rs.7,000/- in favour of the complainant. All the cheques were to be drawn from the Sarguja Kshetriya Gramin Bank, Branch Balrampur, Sarguja. When complainant deposited the aforesaid cheques in his account, all the cheques were dishonoured by the bank with memo dated 02.08.2001. Complainant sent legal notice to the accused/respondents through his advocate but the respondents did not pay him loan amount, therefore, he filed complaint case against the accused/respondents.

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On 29.11.2001, learned trial Court after taking statement of the complainant registered the complaint case under Section 138 of the Negotiable Instruments Act. Respondents/accused appeared before the Court and denied their guilt. The case was fixed for complainant’s evidence on 15.01.2009 but on the said date, complainant as well as his counsel did not appear before the learned trial Court. Therefore, the learned trial Court dismissed the complaint case for want of prosecution and discharged the respondents from the charges under Section 138 of the Negotiable Instruments Act. Hence this appeal filed by the appellant.

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Learned counsel for the appellant submits that as per the records, on 22.12.2008, case was ordered to be put up on 22.01.2009, however the same was called for hearing on 15.01.2009 and on the said date, the complaint case was dismissed. In any case, the case

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was registered after following due process of law wherein primafacie guilt of the accused was writ large, the dismissal of criminal proceedings/complaint for a trivial lapse on the part of the complainant was not warranted. Due to bona fide mistake occurred on behalf of the office of the complainant’s counsel, complainant could not appear before the learned trial Court. In support of his appeal, appellant filed photocopy of his counsel’s diary and as per the said diary, the case was fixed for 22.01.2009, therefore, due to bona fide mistake, appellant and his counsel could not appear before the learned trial Court. Even otherwise, the learned trial Court should not dismiss the complaint case on technical grounds.

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Learned counsel for the respondents supported the impugned order.

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In the matter of Associated Cement Co. Ltd. Vs. Keshvanand reported in (1998) 1 SCC 687 , Hon'ble the Apex Court held as under:-

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“18. Reading the Section in its entirety would reveal that two constraints are imposed on the court for exercising the power under the Section. First is, if the court thinks that in a situation it is proper to adjourn the hearing then the Magistrate shall not acquit the accused. Second is, when the Magistrate considers that personal attendance of the complainant is not necessary on that day the Magistrate has the power to dispense with his attendance and proceed with the case. When the Court notices that the complainant is absent on a particular day the court must consider whether personal attendance of the complainant is essential on that day for progress of the case and also whether the situation does not justify the case being adjourned to another date due to any other reason. If the situation does not justify the case being adjourned the Court is free to dismiss the complaint and acquit the accused. But if the presence of the complainant on that day was quite unnecessary then resorting to the step of axing down the complaint may not be a proper exercise of the power envisaged in the section. The discretion must, therefore be exercised judicially and

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fairly without impairing the cause of administration of criminal justice.”

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Again, in the matter of Mohd. Azeem Vs. A. Venkatesh & another reported in (2002) 7 SCC 726 , Hon'ble the Apex Court held that in a proceeding under the Act, 1881, due to single default in appearance on the part of the complainant/appellant, the dismissal of the complaint case is not proper, legal and justified.

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Dismissal of the complaint case was not the only option before the trial Court. The trial Court could have adjourned the case to some other date as per the provisions of Section 256(1) CrPC. From perusal of the order-sheets of the trial Court, it is seen that on the earlier dates of hearing the complainant was present in person or through his counsel. As such, it cannot be said that the complainant was not interested in pursuing his case and unnecessarily remained absent on 15.01.2009 to hamper the course of justice. The trial Court vide order dated 29.11.2001, having perused the statement of the complainant and the documents produced by him found prima facie case under Section 138 of the Negotiable Instruments Act being made out against the respondent/accused. Thus, in the given set of facts and circumstances of the case and the conduct of the complainant, keeping in view the aforesaid decision of Hon’ble Supreme Court, the order impugned dismissing the complaint case for want of prosecution is not sustainable in law and is liable to be set aside.

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Accordingly, the appeal is allowed and the order dated 15.01.2009 passed by learned trial Court is hereby set aside. The trial Court is directed to proceed with the case and after providing opportunity to the parties, the case shall be decided on merits in accordance with

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law.

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