Allowed

Dileshwarpuri Goswami v. Kapil Dev Bhardwaj

Chhattisgarh HC9 Jan 2023CRMP/27/2023

Case brief

AI extract

What is this about?

The High Court granted leave to appeal under Section 378(4) Cr.P.C. against an order dismissing a cheque bounce case for want of prosecution. The Court held the dismissal and acquittal were improper due to the complainant's absence and remitted the matter to the trial court for fresh adjudication on merits.

What did the court decide?

Leave to appeal is granted; trial court order of 14.10.2022 set aside; matter remitted for fresh adjudication on merits.

Dileshwarpuri Goswami Vs Kapil Dev Bhardwaj — Cheque Dishonour | Chhattisgarh HC (2023)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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CRMP No. 27 of 2023

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Dileshwarpuri Goswami S/o Shri Chandelpuri Goswami Aged About 40 Years R/o Tulsi Awas 5/27 Rajkishore Nagar, Thana Sarkanda, Tahsil And District- Bilaspur, Chhattisgarh.

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---- Petitioner

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Versus

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Kapil Dev Bhardwaj S/o Shri Bihari Lal Bhardwaj (Retired Principal) Aged About 36 Years R/o Village Kharoud, Tiwari Para Ward No. 01 Post Office Kharoud, Tahsil, Thana And District- Janjgir-Champa, Chhattisgarh.

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---- Respondent

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For Petitioner : Mr. Bhuvneshwar Singh Rajput, Advocate.

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Hon'ble Smt. Justice Rajani Dubey Order on Board 09/01/2023

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Heard on application under Section 378(4) of Code of Criminal Procedure, 1973, for grant of leave to appeal against the order of dismissal.

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Upon due consideration, leave is granted.

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This petition is preferred against the order dated 14.10.2022 passed by the Judicial Magistrate First Class, Bilaspur, District Bilaspur (C.G.), in Complaint Case No. 558/2019 wherein the said Court dismissed the case for want of prosecution and acquitted the respondent from the charge under Section 138 of Negotiable Instrument Act.

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It appears from the order sheets of the trial Court that the case was listed on 14.10.2022 and the matter was called several times but due to the non-appearance of the petitioner, the case was dismissed for want of prosecution and the respondent was acquitted from the aforesaid charge.

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In the matter of Associated Cement Co. Ltd. Vs. Keshvanand

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reported in ( 1969) 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 dos 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 fairly without impairing the cause of administration of criminal justice.”

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Again, in the matter of Anand Kumar Agrawal Vs. Pawan Sahu in

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CRMP/943/2019 vide order dated 15.04.2019 this Court held in para 7

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that:-

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“7. 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) Cr.P.C. The trial Court should have proceeded to serve summon to the respondent and after appearance of the respondent the case should have been decided on merits and it should not have been sent to record room without deciding issues between the parties and without providing opportunity to adduce evidence but that is not done in the present case, therefore, the order passed by the trial Court is not sustainable.”

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Considering the facts and circumstances of the case and the law laid

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down in the matter of Associated Cement ( Supra) & Anand ( Supra), this Court finds that in default of non-appearance on the part of complainant, dismissal of case for want of prosecution and the acquittal of respondent is improper and unjustified.

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Accordingly, order dated 14.10.2022 passed by the trial Court is setaside allowing the instant petition. Matter is remitted back to the Judicial Magistrate First Class, Bilaspur District - Bilaspur for fresh adjudication of the case on merits after giving opportunity of hearing to the complainant.

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The petitioner is directed to appear before the concerned trial Court on

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27^th February 2023 for further proceedings.

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Sd/(Rajani Dubey) Judge

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H.L. Sahu

Dileshwarpuri Goswami v. Kapil Dev Bhardwaj

Case brief

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Dileshwarpuri Goswami v. Kapil Dev Bhardwaj

Case brief

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