Allowed

Swaran Singh v. Sawinder Singh & Anr.

Punjab & Haryana HC9 Aug 2012CRM-M/10529/2012

Case brief

AI extract

What is this about?

In a criminal miscellaneous petition, the Punjab and Haryana High Court set aside the trial court order dismissing a Section 138 cheque bouncing complaint for want of prosecution and acquitting the accused. The High Court held the acquittal unsustainable as the case was at the arguments stage and without evidence consideration.

What did the court decide?

The impugned order of acquittal dated 11.8.2011 is set aside. The complaint is restored subject to deposit of Rs. 25,000/-.

Swaran Singh Vs Sawinder Singh & Anr. — Cheque Dishonour | Punjab & Haryana HC (2012)

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.

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Criminal Misc. No. M-10529 of 2012. Date of decision: August 09, 2012.

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Swaran Singh Vs. Sawinder Singh and another.

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**CORAM: HON'BLE MR. JUSTICE JITENDRA CHAUDHAN *****

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Present: Shri K.S.Rekhi, Advocate, for the petitioner.

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Shri Vineet Sharma, Advocate, for the respondents.

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JITENDRA CHAUHAN, J (ORAL)

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In this petition filed under Section 482 of the Code of Criminal Procedure, the petitioner has challenged the impropriety and proprietary of the order dated 11.8.2011 (Annexure P-3), passed by Judicial Magistrate Ist Class, Amritsar whereby the complaint dated 11.11.2009, filed under Section 138 of the Negotiable Instruments Act, 1881 for bouncing of cheque dated 8.4.2008, for a sum of Rs. 3,70,000/- has been dismissed in default, for want of prosecution and acquitted the accused.

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Pursuant to notice of motion issued by this Court, vide order dated May 09, 2012, Shri Vineet Sharma, Advocate, put in appearance and contested the claim of the petitioner, and prays that the petition is liable to be dismissed with special costs, as the same is barred by limitation.

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Learned counsel for the petitioner inter alia contends that the learned trial court has erred in dismissing the complaint in default and acquitting the accused, without going into the merits of the case and the fact that the case was at the stage of arguments and absence of counsel for the complainant was not intentional but was incidental. In support of his

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-2Crl. Misc. No.M-10529 of 2012

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contention he submitted that the case was adjourned to 11.08.2011, but the date noted down by the Clerk was 12.08.2011. He further stated that the application for restoration of the case was moved before the trial court but the same was dismissed vide order dated 13.02.2012, on the ground that the trial court is not competent to restore the complaint.

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Learned counsel for the petitioner placing reliance upon a decision of this Court in Om Parkash Versus M/S Golden Forest Limited and others- 2008(3) Civil Court Cases 0105, contended that the reasons depicted in the application for restoration of the case, were bona fide. The complainant or his counsel could not appear in the case because of the fact that the date noted down by the clerk was 12.8.2011, instead of 11.8.2011. He further submitted that the learned trial court was not justified to pass the order of acquittal of the accused-respondent while dismissing the case for want of prosecution. He further stated that the trial court did not take into consideration while dismissing the complaint, the fact that the case was for dis-honouring of a cheque of Rs.3,70,000/- and it was fixed for arguments.

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On the other hand, learned counsel for the respondent submitted that the present petition filed under Section 482, of the Code of Criminal Procedure, is not maintainable as the petitioner had the alternative remedy of filing revision petition against the order or appeal before the appropriate court of competent jurisdiction against the dismissal of application for restoration of the case, which too was beyond limitation and was filed after a lapse of 60 days, of the passing of the impugned order.

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Heard.

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It is well settled proposition of law that against the dismissal of the complaint and the order of acquittal, the remedy available is to file an appeal, revision or petition under Section 482 of the Code.

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-3Crl. Misc. No. M-10529 of 2012

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After going into the submissions made by learned counsel for the parties, and the fact that the case was at the stage of arguments and the evidence of the accused-respondents was closed by orders of the Court, the order passed is not sustainable. Thus, the impugned order passed by the learned trial court, which is apparently without any justification and passed without going into the merits of the case, is liable to be set aside because the trial court has not even touched an iota of evidence, while passing the order of acquittal of the accused.

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The petition is, accordingly, accepted and order dated August 11, 2012 (Annexure P-3), is set aside. The complaint is restored to its original number, subject to deposit of Rs.25,000/- with the Chairman, District Legal Services Authority, Amritsar.

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The learned trial court is directed to proceed further from the

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stage it was dismissed in default.

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August 09, 2012. (JITENDRA CHAUHAN) Malik JUDGE

Swaran Singh v. Sawinder Singh & Anr.

Case brief

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Swaran Singh v. Sawinder Singh & Anr.

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