Babulal Khandelwal vs Liladhar Tiwari

I.S. Shrivastava, J.—Heard on the question of admission as well as for final hearing.

A private complaint was filed u/s 138 of the Negotiable Instrument Act (for short ''the Act'') by the complainant against the accused/ respondent before the Trial Court. The case was fixed for evidence on 27/06/ 2007, but the appellant was not present, hence the complaint was dismissed and the accused/respondent was discharged.

It has been argued on behalf of the appellant that the advocate for the appellant failed to make an entry in his advocate diary to the effect that Criminal Complaint No. 5518/06 is listed for evidence on 27/06/2007 and hence he could not appear before the Court and also he could not inform his client for the same, therefore, the client and the advocate could not appear in the Court on 27/06/2007 and the case was dismissed by the Trial Court. The Trial court has taken a strict view and has not considered the fact that the complaint was genuine and on single default of the appearance, the case was not due to be dismissed, hence the appeal be accepted.

Arguments considered.

In Mohd. Azeem Vs. A. Venkatesh and Another, , it has been held that the Court adopted a very strict and unjust attitude resulting tin failure of justice. In our opinion, the learned Magistrate committed an error in acquitting the accused only for absence of the complainant on one day and refusing to restore the complaint, when sufficient cause of absence was shown by the complainant.

In Right Services Vs. Chhotu Bhaiya Road Lines and Another, it has been held that while dismissing the complaint in the absence of complainant, the Court should not pass the orders of dismissal of complaints and acquit the accused persons mechanically. The Court should consider the nature of the offence and the material produced by the complainant and also the stake which complainant is having in the matter. If on solitary hearing or hearings for one or the other reasons if the complainant is not present, normally the Court should adjourn the case and should not arbitrarily exercise its discretion refusing the exemption. Normally in complaint cases filed u/s 138 of the Negotiable Instruments Act when a complaint is filed, the complainant is having a stake in the matter. Therefore, in the absence of the complainant, the complaint should not be dismissed immediately. The Court should either adjourn the case or may proceed to hear the case under the proviso of section 256 of the Cr.P.C, and if the complainant is represented by an Advocate or by officer conducting the prosecution or if the personal attendance of the complainant is not necessary, the Court should either grant exemption, suo-motu or on the application of the advocate, as the order of dismissal of complaint operates as a final order. Therefore, normally it should be passed after proper application of mind and exercise of judicial discretion. Impugned orders, dismissing the complaints and acquitting the respondent/accused are hereby set aside.

In the case, the complaint was filed u/s 138 of the Act for the dishonour of cheque of Rs. 40,000/- and the case was fixed for evidence on 27/06/2007, but on the date, on single default of appearance of the complainant and his advocate, the Court dismissed the complaint and discharged the accused/respondent. The action taken by the Court was more harsh and strict. The case ought to have been adjourned for the evidence of the parties, the Court should not dismiss the complaint. The appellant was represented through counsel, then the Court should have adjourned the hearing of the case for some other day instead of dismissing the complaint.

Keeping in view the above law and the facts and circumstances of the case, the present appeal is accepted and the order dated 27/06/2007 is hereby set aside and it is ordered that the complaint filed by the appellant be restored to its original number. The Trial Court to issue afresh notice to the parties to appear before the Trial Court on 06/01/2010.

Accordingly, this appeal is disposed of.

C c as per rules.