Allowed

Jagbir v. Sandeep Mehta

Himachal Pradesh HC4 Jul 2024CRMMO/333/2023

Case brief

AI extract

What is this about?

Hon'ble High Court set aside impugned order dismissing complaint under Section 138 NI Act for non-prosecution due to complainant's absence during service date. Court quashed acquittal order and restored proceedings to trial court for further consequences.

What did the court decide?

Order dated 22.03.2021 quashed; Complaint RBT-431-3/19/16 restored to proceedings in Court of additional Chief Judicial Magistrate.

Jagbir Vs Sandeep Mehta — Cheque Dishonour | Himachal Pradesh HC (2024)

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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

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Cr.MMO No. 333 of 2023 Date of Decision:04.07.2024

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----------------------------------------------------------------------------------------Jagbir ...Petitioner Versus Sandeep Mehta …Respondent ----------------------------------------------------------------------------------------Coram: The Hon’ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting?¹ Yes. ---------------------------------------------------------------------------------------For the Petitioner: Mr. Rakesh Manta, Advocate. For the Respondent: Mr. Bhairav Gupta and Mr. Anubhav Chopra, Advocates. ----------------------------------------------------------------------------------------- Sandeep Sharma, J. (Oral)

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Being aggrieved and dissatisfied with order dated 22.03.2021 passed by learned Additional Chief Judicial Magistrate, Court No.1, Rohru, District Shimla, H.P., whereby Criminal Complaint No. RBT-431-3/19/16, titled Jagbir vs. Sandeep Mehta, came to be dismissed for non-prosecution, petitionercomplainant has approached this Court in the instant proceedings filed under Section 482 Cr.P.C, praying therein to set aside the aforesaid order and restore the complaint filed under Section 138 of the Negotiable Instruments Act.

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Precisely, the facts of the case as emerge from the record are that the petitioner-complainant instituted proceedings under Section 138 of the Negotiable Instruments Act (for short

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1 Whether reporters of the local papers may be allowed to see the judgment?

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‘Act’) in the competent Court of law. Since despite notice, respondent-accused (hereinafter referred to as the accused) was avoiding service, Court concerned vide order dated 01.02.2021, issued NBW against the accused for securing his presence, returnable on 22.03.2021. On 22.03.2021, NBWs issued against the accused were received back unexecuted for want of whereabouts of the accused. Since on that day, none appeared on behalf of the complainant, Court concerned after adjourning the matter for some time, proceeded to dismiss the same for nonprosecution. In the aforesaid background, complainant has approached this Court in the instant proceedings, praying therein to set aside aforesaid order.

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Precisely, the grouse of the petitioner as has been highlighted in the petition and further canvassed by Mr. Rakesh Manta, learned counsel for the petitioner, is that since on 22.03.2021, no arguments, if any, were to be advanced by the complainant or his counsel and matter was fixed for the service of the respondent-accused, there was no occasion, if any, for the Court below to dismiss the complaint for non-prosecution. While making this Court peruse impugned order dated 22.03.2021, learned counsel for the petitioner attempted to persuade this Court to agree with his contention that on 22.03.2021, Court below otherwise after having received report from Processing Serving

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Agency that NBW issued against the accused has been received back unexecuted for want of whereabouts of the accused, would have issued fresh NBWs against the accused. However, it having taken note of non-presence of the complainant as well as his counsel, proceeded to dismiss the complaint for non-prosecution.

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To the contrary, Mr. Bhairav Gupta, learned counsel for the respondent-accused, supported the impugned order. He submitted that since complainant had not come present to pursue his complaint, no illegality can be said to have been committed by the Court below, while passing impugned order. He submitted that in criminal proceedings complainant and accused, unless exempted are always under obligation to put in appearance on each and every date. He further submitted that as per the instructions imparted to him, entire cheque amount already stands paid to the complainant, however, such fact has been seriously disputed by learned counsel for the petitioner.

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Having heard learned counsel for the parties and perused material adduced on record, this Court finds that on 220.3.2021, case was listed for service of the respondent-accused, who admittedly despite various notices, failed to put in appearance. Vide order dated 01.02.2021, Court concerned, having taken note of the statement made by learned counsel for the complainant that respondent-accused though resides on the given address, but he

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is avoiding service, proceeded to issue NBW, returnable for 22.03.2021, meaning thereby on 22.03.2021, Court was only required to record factum, if any, of service of the respondentaccused. Had respondent-accused put in appearance on the given date, Court would have proceeded to put him notice of accusation. No doubt, perusal of the Zimini o rders placed on record reveals that on 22.03.2021, matter was adjourned four times, enabling complainant or his counsel to come present, but certainly Court ought not have straightway proceeded to dismiss the complaint for non-prosecution, rather in such like situation, Court could either issue notice to the complainant or his counsel, specifically calling upon them to come present in person. Interestingly, Court concerned in the impugned order has observed that non-presence of the complainant do not appear to be un-intentional and nondeliberate, but it is not understood how and on what basis aforesaid finding came to be returned by the Court concerned. Once pursuant to order dated 01.02.2021, complainant or his counsel had furnished process fee, enabling Registry of the Court concerned to issue NBW, aforesaid finding given by Court that non-presence of the complainant do not appear to be unintentional and non-deliberate, does not appear to be correct. Had complainant not put in appearance on previous dates, Court

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concerned was well within its right to conclude that complainant‘s absence on the given date is intentional and deliberate.

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In terms of Section 143 of the Act, offence under Section 138 of the Act is to be tried summarily and accordingly, procedure for summons case provided in Chapter XX of the Code of Criminal Procedure is applicable during the trial initiated on filing a complaint under Section 138 of the Act. Section 256 of Cr.P.C, specifically deals with a situation of non-appearance of the complainant or death of the complainant.

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At this stage, it would be apt to take note of Section 256 Cr.P.C, which reads as under:-

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“ 256. Non-appearance or death of complainant. - (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 reason 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 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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Bare reading of aforesaid provision of law provides

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discretion to the Magistrate either to acquit the accused or to adjourn the case for some other day, if he thinks it proper. Proviso to aforesaid section further empowers the Magistrate to dispense

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with the complainant from his personal attendance, if it is found not necessary and to proceed with the case. If the complainant is represented by a pleader or by the officer conducting the prosecution, the Magistrate may proceed with the case in absence of the complainant. When the Magistrate, in a summons case, dismisses the complaint and acquits the accused due to absence of the complainant on the date of hearing, it becomes final and it cannot be restored in view of Section 362 Cr.P.C. At this stage, it would be profitable to reproduce Section 362 Cr.P.C., herein

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below:-

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362. Court not to alter judgment. -Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.”

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Having taken note of effect of dismissal of complaint under Section 138 of the Act, Hon'ble Apex Court in case titled Associated Cement Co. Ltd. v. Keshvanand , reported in (1998) 1 SCC 68 7, elaborately dealt with the scope of Section 256 Cr.P.C, and held that though, afore Section affords protection to an accused against dilatory tactics on the part of the complainant, but, at the same time, it does not mean that if the complainant is absent, the Court can straightway proceed to acquit the accused in invitum. It has been specifially held in the afore judgment that power under Section 256 Cr.P.C must be exercised judicially and

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fairly without impairing the cause of administration of criminal justice.

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Similarly in case titled Mohd. Azeem v. A.

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Venkatesh , reported in (2002) 7 SCC 726 , Hon'ble Apex Court held that dismissal of the complaint on account of one singular default in appearance on the part of the complainant, if permitted would result in failure of justice.

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in case titled S.Anand v. Vasumathi Chandrasekar , reported in (2008) 4 SCC 67 , Hon'ble Apex Court also deprecated practice of trial Court in dismissing the complaint on account of default in appearance. In the afore case complaint under Section 138 of the Act was dismissed by the trial Court exercising the power under Section 256 Cr.P.C on failure of the complainant or her power of attorney or the lawyer appointed by her to appear in Court on the date of hearing fixed for examination of witnesses on behalf of the defence. Hon'ble Apex Court after having considered the provisions of Section 256 Cr.P.C, observed that Court instead of disposal of a complaint in default, could have proceeded to decide the matter on merits on the basis of evidence already adduced on record by the complainant and the statement of accused recorded under Section 313 Cr.P.C.

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In yet another case titled N.K. Sharma's case vs. M/S Accord Plantations Private Limtied and another , reported

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in 2008(2) Latest HLJ 1249, Co-ordinate Bench of this Court relying upon Associated Cement Co. Ltd.'s case (supra ), categorically held that when the Court notices that complainant is absent on a particular day, it must consider that whether the personal attendance of the complainant is essential on that day for the progress of the case and also whether the situation does not justify the case being adjourned to another date due to any other reason and if the situation does not justify the case being adjourned, then only Court is free to dismiss the complaint and acquit the accused, but if the presence of complainant on that day was quite unnecessary then resorting to the step of axing down the complaint, may not be a proper exercise of power envisaged under Section 256 Cr.P.C.

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As has been taken note hereinabove, in the case at hand, on 22.03.2021, case was actually listed for the service of the respondent-accused, who was issued NBW for 22.03.2021 pursuant to the steps taken by the complainant in terms of order dated 01.02.2021, enabling Registry concerned to issue NBW. Since on 22.03.2021, matter was fixed for the service of the respondent-accused, absence, if any, of the petitioner-complainant or his counsel was not of much relevance, especially when on that day, Court after having noticed report of Process Serving Agency would have again issued NBW for securing presence of the

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accused for some other date. Even if it is presumed that on 22.03.2021, pursuant to NBW issued, respondent-accused had put in appearance, Court after having recorded presence of the accused, either could put notice of accusation to him or adjourn the matter, enabling complainant to come present on the given date. There is nothing to suggest that prior to 22.03.2021, there was any default on behalf of the complainant in pursuing the complaint and as such, default being singular, ought to have been ignored by the Court and to do substantial justice, it ought to have adjourned the matter to some other date. Dismissal of complaint in default for non-appearance of the complainant on the date fixed, without affording him even a single opportunity, is wholly unjustified. Since, very effect of dismissal of complaint in default has serious consequence of acquittal of accused, who admittedly had been avoiding service, Court below was expected to exercise his discretion with care and caution.

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Reliance is placed upon the judgment dated 01.03.2023 passed by Hon'ble Apex Court in M/s BLS Infrastructure Limited versus M/s Rajwanti Singh and others i n Criminal Appeal Nos. 657-664 of 2023, where in similar facts and circumstances, Hon'ble Apex Court held that the action of learned Magistrate not justified in straight away dismissing the complaint(s) and ordering acquittal of the accused on mere non

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appearance of the complainant. Relevant paras No.13 and 14 of afore judgment are as under:-

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“13. In the instant case, we notice that there is a specific averment in the Special Leave Petition(s) that the appellant had led its evidence in the case and thereafter had moved an application under Section 311 of the Code to summon and examine further witnesses. In Paragraph 5(u), it is stated that the trial court as well as the High Court did not take into consideration that the complainant’s cross-examination had been over in Complaint Case Nos.621742/16, 621743/16 and 621744/16, and no cross-examination was sought in other cases. Rather, CW-1’s cross-examination in the above three complaint cases was adopted. There appears no specific denial of the aforesaid factual position. However, we find that neither the High Court nor the learned Magistrate has taken notice of the aforesaid position. Both the courts below thus failed to consider whether in the facts of the case under the proviso to sub-section (1) of Section 256, the court could proceed with the matter after dispensing with the attendance of the complainant. Further, if the complainant had not appeared to press the application under Section 311 of the Code, the learned Magistrate could have rejected the application under Section 311 of the Code and proceeded with the case on basis of the available evidence. We are, therefore, of the considered view that the learned Magistrate was not justified in straight away dismissing the complaint(s) and ordering acquittal of the accused on mere nonappearance of the complainant. The High Court too failed to take notice of the aforesaid aspects. Thus, the orders impugned are liable to be set aside.

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14. For the reasons above, the order(s) of the High Court as well as of the learned Magistrate are set-aside. The proceedings shall stand restored to their original number(s) on the file of the learned Magistrate and the prosecution shall now proceed from the stage where it was when the order of acquittal/dismissal of the complaint(s) was passed.”

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15. Factum of payment, if any, made by the respondent-

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accused to the complainant, which has been otherwise seriously

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disputed by learned counsel for the petitioner-complainant, cannot be gone into the instant proceedings, rather same can be ascertained in the main proceedings filed under Section 138 of the Negotiable Instruments Act.

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Consequently, in view of the detailed discussion made hereinabove as well as law taken into consideration, the present petition is allowed, order dated 22.03.2021 is quashed and set aside and complaint No.RBT-431-3/19/16, titled Jagbir vs. Sandeep Mehta, is ordered to be restored, with a direction to learned Court below to proceed with the trial from the stage, it was dismissed.

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Learned counsel representing the parties undertake to cause presence of their respective clients before the learned Court below on 24.07.2024, enabling Court below to proceed with the matter. Pending applications, if any, also stand disposed of.

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(Sandeep Sharma) Judge

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July 04, 2024

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(shankar)

Jagbir v. Sandeep Mehta

Case brief

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Jagbir v. Sandeep Mehta

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