Allowed

Rima Sharma v. the State of Assam and Anr.

Gauhati HC11 Mar 2019Crl.A./292/2018

Case brief

AI extract

What is this about?

The Gauhati High Court allowed an appeal filed by the appellant against the dismissal of her Section 138 NI Act complaint for non-appearance. The High Court set aside the order dismissing the prosecution, directing the trial court to restore the case for further proceedings.

What did the court decide?

The impugned order dated 25.6.2018 was set aside with direction to restore the case to the stage from where it was dismissed.

Rima Sharma Vs the State of Assam and Anr. — Cheque Dishonour | Gauhati HC (2019)

¶1

Page No.# 1/4

¶2

GAHC010187822018

¶3

THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

¶4

Case No. : Crl.A. 292/2018

¶5

1:RIMA SHARMA D/O- RAJENDAR SARMA, R/O- HOUSE NO. 13, ATHGAON, S.C. BYLANE, P.S. BHARALUMUKH, DIST- KAMRUP(METRO), GUWAHATI-781001, ASSAM. VERSUS 1:THE STATE OF ASSAM AND ANR REPRESENTED BY PUBLIC PROSECUTOR, ASSAM. 2:MANTUMA BEGUM W/O- SAHID ALI R/O- HALDI GALLI ATHGAON P.S.- BHARALUMUKH DIST- KAMRUP(M) GUWAHATI-781001 ASSAM

¶6

Advocate for the Petitioner : MR A TEWARI Advocate for the Respondent : PP, ASSAM

¶7

BEFORE HONOURABLE MRS. JUSTICE RUMI KUMARI PHUKAN

¶8

ORDER

¶9

Date : 11-03-2019

¶10

Heard Mr A. Tewari, learned counsel for appellant. Notice is

¶11

deemed to have been served on respondent no.2 as registered notice was issued repeatedly but was not returned. The State is a formal party.

¶12

Page No.# 2/4

¶13

Appellant filed a complaint case(CR 2100c/2016) u/s 138 of the Negotiable Instrument Act, 1881 before the learned JMFC, Kamrup(M). The learned trial court dismissed the case for absence of the appellant/complainant and non service of process on the accused by the order dated 25.6.2018 resulting in the acquittal of the accused.

¶14

Carrying grievances over the said order this appeal is filed on the ground that the appellant took all necessary steps to secure the presence of the accused to whom initially summon was issued but since the same was not served the learned trial court issued bailable arrest warrant and also non-bailable arrest warrant against the accused and when the accused did not turn up and the appellant could not appear on last occasion the learned trial court dismissed the case observing that the appellant has not taken step on 2 consecutive dates and has not appeared when it is her responsibility to take step.

¶15

Appellant brought on record with an additional affidavit all the relevant orders that were passed after filing of the complaint before this court.

¶16

Learned counsel for appellant referred to such orders to point out that since the filing of the case the appellant has taken steps regularly and as summon issued was returned un-served and then the court also

¶17

Page No.# 3/4

¶18

issued fresh nonbailable arrest warrant against the accused.

¶19

I have perused the relevant document and the orders passed by the learned trial court

¶20

The order dated 21.8.2018 shows that the appellant has taken steps for arrest warrant fixing 22.3.2018. Though the appellant was absent on 22.3.2018, she was represented and on 19.4.2018(the next date) the court issued show-cause notice to the officer-in-charge concerned for not submitting report on the warrant issued by the court fixing 25.6.2018. The learned court dismissed the case on 25.6.2018 as the appellant was absent on 22.3.2018 and 25.6.2018.

¶21

A bare perusal of the order-sheets it reflects that prior to the last date(25.6.2018) the appellant was all throughout present before the court except one day(22.3.2018). Besides, she also took step for process as directed by the court and the order dated 19.4.2018 shows that the case is fixed for show-cause report by investigating officer regarding non execution of the arrest warrant. That being the position the learned trial court could have waited for the report of the serving agency regarding execution of the process. The absence of appellant will not affect the entire process of the court. The learned trial court could have granted one more opportunity to appellant instead of dismissing the case as the

¶22

Page No.# 4/4

¶23

said date was fixed only for police report regarding execution of the proceess.

¶24

It cannot be lost sight that appellant was pursuing the complaint case before the court taking necessary steps and for the inaction of the serving agency the process was not served properly on accused. Only blaming the appellant for such default will not be proper as for the dismissal of the case she is deprived of her right to prosecute the offender. Only one default of a party in a case cannot be said to be a serious lapse on his part when trial is not yet begun and the accused also did not appear.

¶25

Learned counsel for appellant also made submission that the appellant could not remain present before the court on 25.6.2018 for wrong entry of the date in the diary of the engaged counsel.

¶26

Having regard to the submissions of the parties and the entire material on record the impugned order dated 25.6.2018 is set aside with direction to the learned trial court to restore the case to the stage from where it was dismissed and proceed accordingly. The appeal is allowed.

¶27

JUDGE

¶28

Comparing Assistant.

Rima Sharma v. the State of Assam and Anr.

Case brief

What is this about?

What did the court decide?

Rima Sharma v. the State of Assam and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Sri Nayan Khodal Vs the State of Assam and Anr.

Kartik Sena Singha Vs Debashis Chakraborty and Anr.

Diganta Chakraborty Vs the Directorate of Enforcement, Govt. of India

Abed Ali Vs the State of Assam

Bhupen Chandra Pegu Vs the State of Assam and 3 Ors.

Rajib Sarma Vs the State of Assam and Anr.