Allowed

Harpal Singh v. Lajwanti

Himachal Pradesh HC13 Oct 2017CR.A/559/2017

Case brief

AI extract

What is this about?

Single Judge allowed the appellant's appeal against an order dismissing a cheque dishonour complaint in default. The Court set aside the order, citing improper non-application of Section 256 CrPC and reliance on prior precedents, directing the magistrate to proceed with the case.

What did the court decide?

Impugned order dated 26.8.2017 set aside; appellant directed to appear for notice to be issued.

Harpal Singh Vs Lajwanti — Cheque Dishonour | Himachal Pradesh HC (2017)

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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Cr.MP(M) No. 1268 of 2017 in Cr. Appeal No. 559 of 2017. Date of decision: 13.10.2017

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Harpal Singh …Applicant/Appellant

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Versus Lajwanti ..Respondent.

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_____________________________________________________ Coram_

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The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge. Whether approved for reporting?¹ No For the Applicant/Appellant: Mr. Maan Singh, Advocate.

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For the Respondent : None.

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Tarlok Singh Chauhan, Judge (Oral).

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Cr.MP(M) No. 1268 of 2017

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Heard. Leave to appeal granted. Application stands

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disposed of.

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Appeal be registered.

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Cr. Appeal No. 559 of 2017

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Since the question raised in this appeal is a pure question

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of law and is otherwise no longer res integra insofar as this Court is concerned, therefore, there is no need to issue notice to the respondent. Moreover, since this appeal emanates from the proceedings initiated by the appellant under Section 138 of the Negotiable Instruments Act, 1881 (for short ‘Act’) wherein the amount in dispute is only `60,000/-, issuing notice to the respondent would only amount to not only unnecessarily harassing her but putting her

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Whether the reporters of the local papers may be allowed to see the Judgment?Yes

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undue financial hardships inasmuch as she would have to engage a lawyer to defend her for such a meager amount.

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This Criminal Appeal is directed against the order dated 26.8.2017 passed by learned Judicial Magistrate 1^st Class, Manali, District Kullu, H.P. in Cr. Case No. 315/150/2014 whereby the complaint filed by the appellant under the Act, came to be dismissed in default, the order reads thus:

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26.8.2017: Present :- None for complainant.

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None for accused.

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Case called repeatedly after intervals during the whole day. None has appeared on behalf of the complainant and accused. It is 3.30 p.m. already and the cause list of the day stands exhausted. In the entirety of the facts and circumstances of the case, to my mind, without presence of the complainant this case cannot be proceeded further at this stage and presence of the complainant is indispensable and the complainant has not been appearing. Hence, the instant complaint is hereby dismissed in default for non-presence and nonprosecution. File after due completion be consigned to the records.”

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4. This Court in Vinod Kumar Verma vs. Ranjeet Singh

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Rathore, Criminal Appeal No. 367 of 2015, decided on 6.5.2016 has in similar circumstances where the complaint under the Act had been dismissed in default observed as under:-

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“3. Evidently, a very hyper technical and pedantic approach has been adopted by the learned court below by dismissing the complaint for default. The complainant was diligently pursuing his remedies and he has also given an explanation for his non appearance on the date fixed. Even

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otherwise there is no reason why the complainant would stop pursuing his case, after all it is a complaint involving dishonour of cheque. That apart, it is always in the interest of justice that the cases should be adjudicated on merits.

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4. Similar issue came up before the Hon’ble Supreme Court in Mohd.Azeem Vs. A. Venkatesh & another (2002) 7 SCC 726 and the Hon’ble Supreme Court has held that the complaint ought not to have been dismissed by the court on account of single default on the part of complainant. It is apt to reproduce paras 3 and 4 of the judgment:

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“3. From the contents of the impugned order of the High Court, we have noticed that there was one singular default in appearance on the part of the complainant. The learned Judge of the High Court observes that even on earlier dates in the course of trial, the complainant failed to examine the witnesses. But that could not be a ground to dismiss his complaint for his appearance (sic absence) on one single day. The cause shown by the complainant of his absence that he had wrongly noted the date, has not been disbelieved. It should have been held to be a valid ground for restoration of the complainant.

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4. In our opinion, the learned Magistrate and the High Court have adopted a very strict and unjust attitude resulting in failure of justice. In our opinion, the learned Magistrate committed an error in acquitting the accused only for absence of the complainant on one day and refusing to restore the complaint when sufficient cause for the absence was shown by the complainant.”

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Evidently, the aforesaid ratio is fully applicable to the facts

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of the instant case and, therefore, the appeal could have been allowed on this ground alone. However, I find an additional ground to allow the appeal while dismissing the complaint for default, the learned trial Magistrate was required to follow the procedure. It would be noticed that while dismissing the complaint for default, provisions of Section 256 of the Code of Criminal Procedure (for short ‘Code’) have not at all been kept in mind.

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Section 256 of the Code specifically deals with nonappearance or death of the complainant, which reads as under:

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“ 256. Non-appearance or death of complainant .-

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(1) If the summons has been issued on complaint, and on the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall notwithstanding anything hereinbefore contained, acquit the accused, unless for some reasons he thinks it proper to adjourn the hearing of the case to some other day.

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Provided that where the complainant is represented by a

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pleader or by the officer conducting the prosecution or where the Magistrate is of opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case.

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(2) The provisions of sub-section (1) shall, so far as may be apply also to cases where the non-appearance of the complainant is due to his death.”

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This Court in N.K. Sharma vs. M/s Accord Plantations

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Pvt. Ltd. and another 2008 (2) Latest HLJ 1249 while construing the provisions of Section 256 has observed that the same is applicable to even the complaints filed under the Act. However, the Court while exercising its discretion to acquit the accused in absence of the complainant has to act judiciously. Therefore, in absence of any order regarding acquittal of the accused, the order impugned herein, can now withstand the judicial scrutiny and is required to be set-aside.

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Therefore, in view of the aforesaid discussion, I find merit in this appeal and the same is accordingly allowed and the impugned order dated 26.8.2017 passed by learned Judicial Magistrate 1^st Class, Manali, District Kullu, H.P. in Cr. Case No. 315/150/2014 is set-aside. The appellant is directed to appear before the learned Magistrate on

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23.10.2017, on which date the learned Magistrate shall proceed to

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issue notice to the respondent.

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However, before parting, it is made clear that in the event of the complainant not pursuing the complaint or absenting herself, the learned Magistrate shall be at liberty and free to pass such order as may be warranted under the law.

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The petition stands disposed of in the aforesaid terms.

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Copy dasti.

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October 13, 2017. (Tarlok Singh Chauhan), (GR) Judge

Harpal Singh v. Lajwanti

Case brief

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Harpal Singh v. Lajwanti

Case brief

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