Allowed

Martin v. Khileshwar Prasad

Chhattisgarh HC19 Feb 2024ACQA/89/2014

Case brief

AI extract

What is this about?

Appeal against dismissal of a Section 138 NI Act complaint for want of prosecution. Relying on Supreme Court precedent, the High Court held single default did not justify dismissal, set aside the trial court's order and restored the complaint for decision on merit.

What did the court decide?

Order dismissing the complaint set aside; petition allowed; trial court directed to proceed after opportunity to pay process fee and respondent's appearance.

Martin Vs Khileshwar Prasad — Cheque Dishonour | Chhattisgarh HC (2024)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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ACQA No. 89 of 2014

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- Martin S/o Arik Swami Aged About 28 Years, R/o Tarbahar, Near Guru Ghasidas Temple, Tarbahar, Ps Tarbahar, Tah., Civil And Rev. Distt. Bilaspur (C.G.)

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----Appellant

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Complainant

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Versus

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- Khileshwar Prasad S/o Taleshwar Prasad Aged About 36 Years, R/o Annapurna Colony, Ganesh Nagar, Chuchuhiyapara, Ps Torwa, Tah., Civil And Rev. Distt. Bilaspur (C.G.)

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---- Respondent

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Accused

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For Appellant : Mr. Amit Kumar, Advocate. For Respondent : None.

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Hon'ble Smt. Justice Rajani Dubey Order on Board

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20.02.2024

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This petition is preferred against the order dated 01.06.2013 passed by the learned Judicial Magistrate First Class, Bilaspur, District- Bilaspur (C.G.), in Complaint Case No. 13/2013 under Section 138 of Negotiable Instruments Act, 1881 wherein the said court has dismissed the case for want of prosecution.

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This petition is nothing but restoration of complaint case which is dismissed in default. Therefore, appearance of the respondent is not compulsory because he will get opportunity of hearing before the trial Court.

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

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

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Again, in the matter of Mohd. Azeem Vs. A. Venkatesh

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& another reported in (2002) 7 SCC 726 , Hon'ble the Apex Court held that in a proceeding under the Act, 1881, the single default in appearance on the part of the complainant, 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. The Court should have provided opportunity to pay process fee for appearance of the

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respondent, it should not have sent to record room without deciding issues between the parties but that is not done in the present case, therefore, the order passed by the trial Court is not sustainable and the same deserves to be set aside.

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Accordingly, order passed by the trial Court is set aside allowing the petition. The trial Court is directed to proceed with the case after providing opportunity to the petitioner to pay process fee and after appearance of the respondent, the case shall be decided on merit.

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The petitioner is directed to appear before the trial Court on 08.04.2024 for further proceedings.

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Sd/(Rajani Dubey) Judge

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Uttej

Martin v. Khileshwar Prasad

Case brief

What is this about?

What did the court decide?

Martin v. Khileshwar Prasad

Case brief

What is this about?

What did the court decide?

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