M/s Speedup India Multi Trade Pvt. Ltd. Vs Dinesh Chopra

2024:HHC:6895

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr. Appeal No.407 of 2024 Date of Decision: 07.08.2024

__________________________________________________________________________ M/s Speedup (INDIA) Multi Trade Pvt. Ltd. ……...Appellant Versus Dinesh Chopra …....Respondent Coram Hon’ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting? For the Applicant/Appellant: Mr. H.S. Rangra, Advocate. For the Respondent: Mr. Abhyendra Gupta, Advocate. _________________________________________________________________________________

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Sandeep Sharma, J. (Oral)

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Cr.MP(M) No.880 of 2024

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By way of instant application filed under Section 5 of Limitation Act, prayer has been made on behalf of applicant/appellant for condonation of delay in maintaining the accompanying criminal appeal, which is barred by limitation.

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Pursuant to notices issued in the instant application, nonapplicant/respondent has filed reply, wherein prayer made on behalf of the applicant/petitioner has been opposed on the ground that no plausible explanation has been rendered on record qua inordinate delay in maintaining the accompanying criminal appeal.

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Having heard learned counsel for the parties and perused material available on record, this Court finds that criminal complaint under Section 138 of the Negotiable Instruments Act ( hereinafter referred to as

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‘the Act’ ) having been filed by the applicant came to be dismissed in default on 15.03.2023. Being aggrieved and dissatisfied with the aforesaid order passed by learned Judicial Magistrate, applicant filed criminal revision petition bearing No.11 of 2023 on 21.08.2023 in the Court of learned Sessions Judge, Mandi, which ultimately came to be dismissed vide judgment dated 01.12.2023, being not maintainable. After passing of aforesaid judgment dated 01.12.2023 by the learned Sessions Judge, Mandi, applicant herein applied for certified copy of judgment on 11.12.2023 and the same was supplied to him on 12.12.2023.

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On 27.02.2024, applicant filed criminal appeal, laying therein challenge to order dated 15.03.2023 passed by learned Judicial Magistrate First Class, Mandi, whereby complaint instituted under Section 138 of the Act came to be dismissed in default. If the limitation period is counted w.e.f. 15.03.2023, when criminal complaint filed by applicant under Section 138 of the Act was dismissed in default, there is a delay of 348 days, but in case, delay is counted from the date of passing of order dated 01.12.2023 passed by learned Sessions Judge, Mandi, accompanying appeal can be said to have been filed within the prescribed period of limitation.

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Though, Mr. Abhyendra Gupta, learned counsel representing the respondent, while making this Court peruse averments contained in the application under Section 5 of the Limitation Act, vehemently argued that

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no plausible explanation has been rendered on record qua the delay in filing the accompanying criminal appeal, however, having carefully perused judgment dated 01.12.2023 passed by learned Sessions Judge in criminal revision petition bearing No.11 of 2023, this Court finds force in the submission of Mr. H.S. Rangra, learned counsel representing the applicant that at first instance, applicant chose wrong forum, as a result thereof, inordinate delay caused in filing the accompanying appeal. Careful perusal of judgment dated 01.12.2023 itself suggest that criminal revision petition filed at first instance remained pending adjudication before the learned Sessions Judge, Mandi for more than four months and thereafter, applicant after having consulted his counsel, proceeded to file accompanying appeal.

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No doubt, no plausible explanation ever came to be rendered on record, qua delay, if any, caused in filing the accompanying criminal appeal for a period starting from 15.03.2023 till 21.08.2023, but since criminal revision petition filed at first instance, laying therein challenge to order dated 15.03.2023 was entertained by the Court below, on account of the fact that same was filed within the prescribed period of limitation, there is no occasion, if any, for this Court to take note of delay, if any, occurred between 15.03.2023 to 21.08.2023, rather, in the case at hand, Court is only required to see whether plausible explanation has been rendered on

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record, qua delay, if any, occurred after 12.12.2023, on which date, certified copy of judgment dated 01.12.2023 was supplied to the applicant. 7. As has been observed hereinabove, if period of limitation is counted w.e.f. 12.12.2023, no delay can be said to have been caused in filing present criminal appeal. Admittedly, criminal appeal ought to have been filed by the applicant, laying therein challenge to order dated 15.03.2023 passed by learned Judicial Magistrate, whereby complaint under Section 138 of the Act came to be dismissed in default, but since counsel representing the applicant chose a wrong forum by filing criminal revision petition, which was otherwise not maintainable, applicant who does not know the nitty-gritties of law, cannot be made to suffer for fault, if any, committed by his counsel. Once applicant had engaged a counsel to institute proceedings under Section 138 of the Act and same was dismissed in default, further course of action was also to be decided by his lawyer. Applicant otherwise cannot be expected to know that after dismissal of complaint under Section 138 of the Act, he is required to file criminal appeal. He immediately after passing of order dated 15.03.2023, instructed his counsel to file appropriate proceedings, laying therein challenge to aforesaid order. Since counsel representing the applicant failed to institute appropriate proceedings and wrongly filed criminal revision petition, which remained pending adjudication till 01.12.2023, this Court is not persuaded

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to agree with Mr. Abhyendra Gupta, learned counsel representing the nonapplicant/respondent that no plausible explanation has been rendered on record qua delay in filing the accompanying appeal.

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For the reasons stated hereinabove, this Court is convinced and satisfied that delay in maintaining the accompanying criminal appeal is neither intentional nor willful, rather same has occurred on account of circumstances which were completely beyond the control of the applicant and as such, same deserves to be condoned.

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Accordingly, delay in filing the petition, which in my considered

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view, has sufficiently been explained, is condoned. The application stands disposed of.

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10. Criminal Appeal be registered

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Cr. Appeal No.____________ 2024

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Being aggrieved and dissatisfied with order dated 15.03.2023 passed by learned Judicial Magistrate First Class, Court No.3, Mandi, District Mandi, Himachal Pradesh, whereby Criminal Complaint

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No.808/17, titled M/s Speedup (India) Trade Pvt. Ltd. Vs. Dinesh Chopra , came to be dismissed in default, petitioner-complainant has approached this Court in the instant proceedings filed under Section 378 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 grouse of the appellant as has been highlighted in the appeal and further canvassed by Mr. H.S. Rangra, learned counsel for the appellant, is that the appellant-complainant instituted proceedings under Section 138 of the Act in the Court of learned Judicial Magistrate First Class, Court No.3, Mandi, District Mandi, Himachal Pradesh and same was ordered to be listed on 15.03.2023. Learned counsel for the appellant states that complainant used to appear before the trial Court on each hearing of the complaint, but when the complaint got transferred from one Court to another on account of transfer of learned Presiding Officer, due to bona fide/inadvertent mistake, the Clerk of the learned counsel representing the complainant before the Court below noted down the next date of hearing as 18.05.2023 in place of 15.03.2023, as a result thereof, when the complaint was taken up for hearing on 15.03.2023, neither the complainant nor its counsel put in appearance before the Court.

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To the contrary, Mr. Abhyendra Gupta, learned counsel for the respondent-accused, supported the impugned order. He submitted that since complainant had not come present to pursue its complaint, no illegality can be said to have been committed by the Court below, while passing impugned order. He submitted that in criminal proceedings

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complainant and accused, unless exempted are always under obligation to put in appearance on each and every date.

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Having heard learned counsel for the parties and perused material adduced on record, this Court finds that on 15.03.2023, case was listed for appearance of complainant. No doubt, perusal of the zimni o rder placed on record reveals that on 15.03.2023, matter was adjourned thrice, enabling complainant or its counsel to come present, but certainly trial Court ought not have straightway proceeded to dismiss the complaint in default, rather in such a situation, Court could either issue fresh notice to the complainant or its counsel, specifically calling upon him to come present itself or its counsel, or could have adjourned the matter.

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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 in the trial initiated on the basis of complaint under Section 138 of the Act. Section 256 of Cr.P.C, specifically deals with a situation of nonappearance 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

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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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Aforesaid provision of law gives a discretion to the Magistrate

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either to acquit the accused or to adjourn the case for some other day, if he/she thinks it proper. Proviso to aforesaid section further empowers the Magistrate to exempt 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 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 f i nal 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 687, elaborately dealt with the scope of Section 256 Cr.P.C, and held that though, afore Section afords protection to an accused against dilatory f 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 specifcally held in the afore i judgment that power under Section 256 Cr.P.C must be exercised judicially and fairly without impairing the cause of administration of criminal justice.

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19. Similarly in case titled Mohd. Azeem v. A. 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

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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 disposing 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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21. In yet another case titled N.K. Sharma vs. M/S Accord Plantations Private Limtied and another, reported 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

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of axing down the complaint, may not be a proper exercise of power envisaged under Section 256 Cr.P.C.

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22. As has been taken note hereinabove, there is nothing on record to suggest that there was any default on the part of the complainant in pursuing the complaint on earlier occasion 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 fxed, is wholly unjustif i ed. Since, very ef i ect of dismissal of complaint in f default has serious consequence of acquittal of accused, Court below was expected to exercise its discretion with care and caution.

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23. 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 in Criminal Appeal Nos. 657-664 of 2023, where, in similar facts and circumstances, Hon'ble Apex Court held that action of learned Magistrate not justif i ed in straight away dismissing the complaint(s) and ordering acquittal of the accused on mere non 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

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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 f i le 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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Consequently, in view of the detailed discussion made hereinabove as well as law taken into consideration, the present appeal is allowed, order dated 15.03.2023 is quashed and set aside and Criminal Complaint No.808/17, titled M/s Speedup (India) Trade Pvt. Ltd. Vs.

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Dinesh Chopra , is ordered to be restored to its original number and position, 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 22.08.2024, 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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August 07, 2024 (Rajeev Raturi)

M/s Speedup India Multi Trade Pvt. Ltd. v. Dinesh Chopra

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M/s Speedup India Multi Trade Pvt. Ltd. v. Dinesh Chopra

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