Allowed

Sanjeev Sharma v. Rajinder Kumar

Himachal Pradesh HC6 Mar 2023CR.A/64/2023

Case brief

AI extract

What is this about?

In an appeal against the dismissal of a Section 138 NI Act complaint, the High Court of Himachal Pradesh held that the complaint could not be dismissed under Section 256 CrPC as the complainant was not duly served with the notice to appear. The impugned order was quashed and the case restored to the trial court.

What did the court decide?

Order dated 10.11.2021 dismissed on account of non-appearance is quashed and set aside. Case restored to original number.

Sanjeev Sharma Vs Rajinder Kumar — Cheque Dishonour | Himachal Pradesh HC (2023)

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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Criminal Appeal No. 64 of 2023 Date of Decision: 6.3.2023

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_____________________________________________________________________ Sanjeev Sharma ……...Petitioner Versus Rajinder Kumar …....Respondent Coram Hon’ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting? For the petitioner: Mr. Amardeep Singh, Advocate. For the Respondent: Mr. Bonit Thakur, Advocate.

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___________________________________________________________________________ Sandeep Sharma, J. (Oral)

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Cr.MP(M) No. 1197 of 2022

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Leave granted. The application is disposed of.

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Appeal be registered.

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Cr.Appeal No. 64 of 2023

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Instant criminal appeal filed under Section 378 of Cr.PC, lays challenge to order dated 10.11.2021, passed by the learned Judicial Magistrate First Class, Jhandutta, Bilaspur, H.P., whereby complaint under Section 138 of the Negotiable Instruments Act, having been filed by the appellant-complainant came to be dismissed on account of nonappearance.

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2. Pursuant to notice issued in the instant proceedings, Mr. Bonit Thakur, Advocate, has put in appearance on behalf of the respondentaccused. While inviting attention of this court to Section 256 Cr.PC, learned counsel for the respondent-accused states that once petitioner despite having received summon/notice failed to put in appearance, court had no option, but to dismiss the complaint and as such, no illegality can be said to have been committed by the court below while dismissing the complaint under Section 138 of the Negotiable Instruments Act on account of non-appearance.

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3. Mr. Amardeep, Advocate, appearing on behalf of the appellantcomplainant states that at no point of time, notice/summon was received by the appellant-complainant and as such, there was no occasion for him to put in appearance. He further states that since court at Jhandutta was not fully computerized, no message with regard to listing of the case was ever received by the appellant-complainant or his counsel and as such, he was unable to put in appearance on the given date.

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4. Having heard learned counsel for the parties and perused material available on record this Court finds that at the first instance complaint under Section 138 of the Negotiable Instruments Act was filed by the complainant in the court of learned Judicial Magistrate, Ghumarwin,

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but subsequently on creation of new court at Jhandutta, complaint filed by the appellant-complainant was transferred to the court at Jhandutta. Careful perusal of the aforesaid notice/summon as well as report given thereupon by the Process Server itself suggests that same was not received by the appellant-complainant. Though perusal of notice/summon (Annexure A-3) suggests that complainant was directed to remain present in the court at Jhandutta, on 10.11.2021, but report of Process Server given on the aforesaid notice clearly reveals that same was not received by the complainant. Though Process Server has reported on the back side of the summon that on 23.10.2021, he handed over copy of notice to the appellant-complainant, but there is no signature, if any, of the appellantcomplainant or any witness on the same. Since no notice was ever received by the complainant for appearance on 10.11.2021, there was otherwise no occasion for the appellant-complainant to remain present on the given date before learned JMFC, Jhandutta, Bilaspur, H.P.

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5. Similarly, this Court finds that before passing order dated 10.11.2021, which is impugned in the instant proceedings, notice stood issued to respondent-accused, whereby he was called to remain present on 10.11.2021 before the learned CJM Jhandutta, Bilaspur and as such, otherwise court below could not invoke 256 CrPC while passing impugned

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order. Since appellant-complainant was not duly served for the given date as is evident from the report given on the back side of the summon/notice issued for appearance on 10.11.2021, impugned order passed by the court below is not sustainable.

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6. No doubt, as per Section 256 CrPC, complaint having been filed by the complainant, deserves to be dismissed on account of nonappearance, but since in the case at hand, appellant-complainant was not served, court below ought not have straightaway dismissed the complaint rather ought to have issued fresh notice calling upon the appellantcomplainant to come present in the Court.

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7. Consequently, in view of the above, this Court finds merit in the instant appeal and as such, same is allowed, as a consequence of which, order dated 10.11.2021 is quashed and set-aside and case is ordered to be restored to its original number. Since respondent-accused has already put in appearance before this court in the instant proceedings through his counsel, he is deemed to be served in the proceedings pending before the court below. Learned counsel representing parties undertake to cause presence of their respective clients before the court below on 13.3.2023 , enabling the court below to proceed with the matter from the stage it had passed the impugned order. Registry is directed to send copy

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of the instant order to the trial court forthwith for compliance. Accordingly, appeal is disposed of in the aforesaid terms alongwith pending applications,

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if any.

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2^nd September, 2022

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2^nd September, 2022 (Sandeep Sharma), (manjit) Judge

Sanjeev Sharma v. Rajinder Kumar

Case brief

What is this about?

What did the court decide?

Sanjeev Sharma v. Rajinder Kumar

Case brief

What is this about?

What did the court decide?

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