Allowed

Vashisht Brothers v. Smt. Sarita Choudhary W/O Sh. Virendra Singh Choudhary

Rajasthan HC18 Jul 2023CRLAS/2395/2023

Case brief

AI extract

What is this about?

Appeal dismissed criminal complaint under Section 138 N.I. Act for want of prosecution. High Court allowed leave appeal, set aside dismissal order, and restored the matter to trial court considering appellant's reasons for absence over three consecutive dates justified restoration despite respondent's objections.

What did the court decide?

Order dated 08.11.2017 set aside; matter restored; trial concluded within four months of record receipt.

Vashisht Brothers Vs Smt. Sarita Choudhary W/O Sh… — Cheque Dishonour | Rajasthan HC (2023)

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[2023:RJ-JP:17967]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Criminal Leave To Appeal No. 109/2022

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Vashisht Brothers, Through Proprietor, Ashuthosh Vashisht, S/o Sh. T.k. Vashisht R/o Plot No. B-17/4, Shiv Marg, Banipark, Jaipur (Raj)

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----Appellant

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Versus

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Smt. Sarita Choudhary W/o Sh. Virendra Singh Choudhary, R/o Plot No. C-4, Pital Factory Chauraha, Near Madhuram Mishtan Bhandar Bani Park, Jaipur (Raj)

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----Respondent

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For Appellant(s) : Mr. Uday Shankar Acharya. For Respondent(s) : Mr. Abhishek B. Sharma.

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HON'BLE MR. JUSTICE ASHOK KUMAR JAIN

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Order

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18/07/2023

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The present S.B. Criminal Leave to Appeal is preferred aggrieved from order dated 08.11.2017 in Criminal Case No. 71/2015 passed by learned Special Metropolitan Magistrate (N.I. Act Cases) No.10, Jaipur Metro, whereby criminal case instituted by the appellant-claimant was dismissed under Section 256 Cr.P.C for want of prosecution.

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With the consent of learned counsels for both the parties at the stage of leave to appeal, the matter is heard on merits.

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Learned counsel for the appellant-complainant while relying upon grounds has submitted that he had filed a case of dishonour of cheque against respondent, but due to certain contingency, which was bonafide in nature, learned counsel could not attend the hearing and did not inform on time to the complainant to

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attend the case, and the case was dismissed under Section 256 Cr.P.C. He further submitted that aforesaid case was inadvertently dismissed by learned Trial Court and they have wrongly pursue restoration and revision. At last, he submitted that in the interest of justice, the matter is required to be restored back.

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Aforesaid contentions were opposed by learned counsel for the respondent. He relied upon judgement of Hon’ble Supreme Court in the cases of Associated Cement Company Limited v. Keshvanand : (1998) 1 SCC 687 and BLS Infrastructure Limited v. Rajwant Singh and Ors.: (2023) 4 SCC 326 , to fortify his contention that wherever complainant was at fault and required to adduce evidence on date fixed for same, but he failed to do so then dismissal of complaint under Section 256 Cr.P.C. is justified and the same cannot be restored. He further relied upon judgement of the Delhi High Court in Fincap Portfolia Ltd. v. State & Ors.: ILR (2013) II Delhi 1345, and judgement of the Bombay High Court in the case of Champalal Kapoorchand Jain v. Navyug Cloth Stores and Ors.: 2019 SCC OnLine Bom 4805 . At last, he submitted that the respondent has already suffered a lot due to inaction by appellant and restoration will further prejudice the interest of respondent.

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Heard learned counsels for both the parties, perused the material available on record. Also perused the judgements of Hon’ble Supreme Court as well as High Courts of Delhi and Bombay.

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Fact of the matter is on dishonour of cheque of Rs.60,000/and as a holder of cheque, the appellant-complainant had filed a complaint under Section 138 N.I. Act, wherein cognizance was

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taken on 25.10.2010. Thereafter, during service of process, the respondent-accused was declared absconder on 19.01.2017. Later, respondent-accused was produced before the Court on 28.02.2017 and was released on bail. On 12.07.2017, plea was recorded and matter was fixed for evidence of complainant on 22.08.2017. Record further indicated that on 22.08.2017 and 05.09.2017, the complainant was present before the Court, but on 22.08.2017, the respondent-accused sought time for cross-examination of complainant and on 05.09.2017, the learned Judge was on leave. Thereafter, matter adjourned to 13.10.2017, 30.10.2017 and 08.11.2017, and in absence of complainant or his counsel, the matter was dismissed under Section 256 Cr.P.C. on 08.11.2017.

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Aforesaid clearly indicated that on 05.09.2017, the Presiding Officer was on leave, thereafter the date was fixed for 13.10.2017 and from 13.10.2017 the complainant and his counsel remained absent but thereafter the matter was fixed in same month on 30.10.2017. Thereafter the matter was again fixed on 08.11.2017.

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In this matter when we consider the reasons assigned in application for restoration then the reason for absence was that on 05.09.2017 when the Presiding Officer was on leave, learned counsel for the complainant noted the date as 13.11.2017, but the matter was fixed on 13.10.2017, 30.10.2017 and 08.11.2017 i.e. three short adjournments, resulting into dismissal of complaint. Now the question is that whether the restoration can be possible.

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Hon’ble Supreme Court in the case of Mohd. Azeem v. A. Venkatesh & Anr.: (2002) 7 SCC 726 has considered dismissal of prayer of restoration of criminal complaint on account of one singular default in appearance on part of complainant as a very

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strict and unjust attitude, resulting in failure of justice. Hon'ble Supreme Court ordered restoration of Criminal Complaint.

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In Associated Cement Company Limited (supra) , Hon’ble Apex Court while considering non-appearance of complainant and dismissal of complaint under Section 256 and 249 Cr.P.C. had allowed restoration of complaint. Similarly in S. Anand v. Vasumathi Chandrasekar : (2008) 4 SCC 67 , wherein evidence of complainant was concluded but the matter was dismissed for non-prosecution, the matter was remitted back.

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Recently in case of BLS Infrastructure Limited (supra) dismissal of complaint for non-appearance of complainant under the offence of 138 of N.I. Act was considered by Hon’ble Supreme Court, wherein again judgement of Associated Cement Company Limited (supra) and S. Anand (supra) were considered and at last the matter was restored back.

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In the case of Fincap Portfolia Ltd. (supra) , the Delhi High Court considered the fact that there was no explanation for delay and no sufficient cause was offered, therefore, petition was dismissed. In the case of Champalal Kapoorchand Jain (supra) , again the complaint was dismissed.

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Having considered the aforesaid in the present matter, the sole contention was that from 05.09.2017, the date was noted as 13.11.2017 by learned counsel for the appellant-complainant, and on 28.11.2017, a restoration application was filed with affidavit, which was dismissed on 28.11.2017 itself by learned Trial Court, thereafter a Criminal Revision was filed before the District Court and the same was dismissed on 17.02.2020, thereafter, this leave to appeal.

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Having considered the aforesaid and the circumstances as narrated hereinabove alongwith the principle of law as settled by Hon’ble Supreme Court of India, I am of considered view that the appellant-complainant was able to show the reasons for nonappearance on three consecutive dates within a period of 25 days, therefore, the objections as raised by learned counsel for the respondent-accused, have no force and the appeal is liable to be allowed.

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In view of the aforesaid, leave is granted and as a result the present S.B. Criminal Appeal preferred aggrieved from order dated 08.11.2017 in Criminal Case No. 71/2015 passed by learned Special Metropolitan Magistrate (N.I. Act Cases) No.10, Jaipur Metro, is allowed and the order dated 08.11.2017 is set aside. The matter is restored back to its original number. The parties are directed to appear before the learned Trial Court on 28.08.2023.

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The learned Trial Court is directed to conclude the trial of the case within a period of four months from receipt of record after providing sufficient opportunity to both of the parties within the aforesaid period.

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Misc. application, if any, stands disposed of.

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(ASHOK KUMAR JAIN),J

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PKS/6

Vashisht Brothers v. Smt. Sarita Choudhary W/O Sh. Virendra Singh Choudhary

Case brief

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Vashisht Brothers v. Smt. Sarita Choudhary W/O Sh. Virendra Singh Choudhary

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