Sourabh Rungta Vs Neeraj Chandrakar

The appellant has filed the present acquittal appeal under Section 378(4) of the Code of Criminal Procedure, 1973 against the order dated 23.11.2022 (Annexure A/1) passed by the learned Judicial Magistrate First Class, Durg (C.G.) in Complaint Case No. 2772/2009 by which the learned Judicial Magistrate First Class, Durg (C.G.) has dismissed the complaint for want of prosecution.

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Brief facts as reflected from the record are that the present

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Digitally signed by MANISH MANISH YADAV YADAV Date: 2025.02.07 11:09:50 +0530

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appellant/complainant has filed a complaint under Section 138 of Negotiable Instruments Act, 1881 before the learned Judicial Magistrate First Class Durg (C.G.) on 17.04.2009 which was registered as Criminal Case No. NI/2772/2009 for dishonor of cheque No. 341690 for Rs. 10,00,000/- dated 05.02.2008. The learned trial Court after recording the statement of the complainant under Section 145 registered the complaint on 22.03.2010 and issued summon to the respondent/accused for appearance on 23.07.2010. The accused appeared and furnished bail bond on 21.10.2010, thereafter, the matter was fixed for framing of charges and he pleads no guilty on 03.01.2011 and thereafter, matter was fixed for applicant’s evidence.

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The record of the case would demonstrate that on 16.10.2011, the accused prayed for settlement of the issue, but ultimately it could not be materialized. Thereafter, the matter was fixed for complainant’s evidence on 23.12.2011. On 23.12.2011, the complainant has submitted his affidavit as provided under Section 145 of the Negotiable Instruments Act, 1881. Thereafter, the matter was adjourned for cross-examination of the complainant and he was examined and cross-examined on 21.09.2013, thereafter, the matter was fixed for further evidence. The complainant submitted further evidence by way of an affidavit and the matter was adjourned for further cross-examination to 24.12.2018 and on 24.12.2018 the complainant was cross-examined. On 28.01.2019 matter was adjourned for further evidence. On 11.02.2019, the accused sought time to cross-examine the witness and the matter

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was adjourned to 25.02.2019. On 25.02.2019, both the parties again sought time to settle the matter, which continued upto 23.05.2019, but no settlement could be arrived, therefore, the matter was again adjourned to 20.06.2019 and finally the complainant has decided not to lead evidence of witness whose affidavit has already been submitted under Section 145 of Negotiable Instruments Act, 1881 and closed their evidence. Thereafter, the matter was fixed for statement of accused under Section 313 of Cr.P.C. which was recorded on 28.06.2019. On 28.06.2019 the accused sought time to lead evidence in his defense, but on 17.09.2019, the accused has closed evidence by not examining any witness, thereafter, the matter was adjourned to 23.09.2019 for arguments which continued upto 22.03.2022. On 22.03.2022 accused was absent therefore, his application for exemption was considered and allowed. Thereafter, the matter was adjourned to 26.03.2022. On 26.03.2022, the trial Court has issued warrant of arrest against the accused, because of his absence and fixed the matter for appearance of the accused on 22.04.2022, 22.06.2022, 22.09.2022, 13.10.2022 and 23.11.2022. On 23.11.2022 the complainant could not appear, therefore, the matter was taken up on 11:30 AM, 01:00 PM, 03:00 PM and 04:45 PM and on the same day the matter was dismissed for want of prosecution.

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The record of the case would demonstrate that the matter was filed before the trial Court in the year 2009 and already the proceedings were concluded and only arguments were required where the

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presence of complainant was not required, only the lawyers have to make submission, as such the matter was not fixed for any active participation of the appellant and the trial Court has already issued warrant of arrest for presence of accused. Despite this the trial Court has dismissed the complaint, it shows that the learned Judicial Magistrate First Class is not sincere to discharge the legal obligation vested upon him and without considering the facts that the matter was quite old, it has mechanically rejected the same. This is nothing but suffers from perversity and illegality which warrants interference by this Court while hearing the acquittal appeal. Accordingly, the order dated 23.11.2022 passed by the learned Judicial Magistrate First Class dismissing the complaint deserves to be quashed and accordingly it is quashed.

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The record of the case would further demonstrate that against dismissal of the complaint, the appellant has preferred revision also before the Sessions Judge which was dismissed as not maintainable against the acquittal appeal. So far as dismissal of revision is concerned, this Court affirmed the findings of the learned revisional Court.

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Before parting with this case, it is expedient for this Court to issue direction to the learned District Judge who onwards will communicate to all the Judicial Magistrate First Class who are entrusted with the complaint case under Section 138 of N.I. Act that they should not exhaust the extreme steps of dismissal of the complaint for want of prosecution under Section 138 of Negotiable Instrument Act, 1881 unless contingency is so extreme which

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requires to take such drastic action of dismissal of complaint for want of prosecution and considered the fact that the complaint under Negotiable Instruments Act, 1881 is quasi criminal proceedings.

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Resultantly, the acquittal appeal is allowed and Complaint Case No. 2772/2009 is restored to its original number and the parties are directed to appear before the concerning trial Court on 04.03.2025. Since the complainant and accused have already entered appearance before this Court, therefore, no notice is required to be issued for his appearance to the accused by the trial Court and the accused will appear on the date fixed by this Court i.e on 04.03.2025.

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A copy of this order be forwarded tos the concerning District & Sessions Judge to issue necessary directions to concerning Magistrates who are taking up the matters under the Negotiable Instruments Act, 1881.

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With the aforesaid observation and direction, present acquittal appeal is allowed.

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Sd/-

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(Narendra Kumar Vyas) Judge

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Manish

Sourabh Rungta v. Neeraj Chandrakar

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Sourabh Rungta v. Neeraj Chandrakar

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