Bal Krishan Rawat vs Pyare Lal Nepta

Instant appeal has been preferred against impugned order, dated 30th October, 2008, passed by learned Judicial Magistrate 1st Class, Jubbal

(hereinafter referred to as ""Magistrate"") in Case No. 18/3 of 2005, whereby the complaint filed by appellantBal Krishan Rawat against

respondentPyare Lal Nepta under Section 138 of the Negotiable Instruments Act (hereinafter referred to as ""NI Act""), came to be dismissed in

default for nonpresence and nonprosecution, when the case was listed for recording of defence evidence.

It is apt to reproduce the impugned order herein:

30.10.2008 Pr. None for complainant.

Sh. Satish Pirta Adv. for the accused. Accused also present. He has moved an application u/s 315 Cr.P.C. and also application

u/s73 Cr.P.C. Since none is present for complainant and neither complainant is present case be called again.

Sd/

JMIC, Jubbal

30.10.2008: Case called again:Present:

None for the complainant.

Accused present with Satish Pirta, advocate.

Case called out thrice. Neither the complainant nor his counsel are present. Let it be called out again after respite.

Sd/

JMIC, Jubbal

Case called after respite:

Present: None for the complainant.

Accused present with Satish Pirta, advocate.

It is already 4:00 pm. Neither the complainant nor his counsel is present. Case has been called out repeatedly. As none is present for

the complainant, hence, the instant complaint is dismissed I default on account of nonpresence and nonprosecution.

File after due completion be consigned to records.

Announced.

Sd/

JMIC, Jubbal

30/10/2008

In view of Section 143 of the NI Act, offence under Section 138 of the NI Act is to be tried summarily and accordingly, procedure for

summons case provided in Chapter XX of the Code of Criminal Procedure (hereinafter referred to as ""CrPC"") is applicable during the trial initiated

on filing a complaint under Section 138 of the NI Act. In this Chapter, Section 256 CrPC deals with a situation of nonappearance of death of

complainant.

In the judgment passed by Allahabad High Court in case titled as Vinay Kumar versus State of U.P. & Anr., reported in 2007 Cri.L.J. 3161,

and another judgment passed by coordinate Bench of this Court in case titled as N.K. Sharma versus M/s Accord Plantations Pvt. Ltd. & another,

reported in 2008 (2) Latest HLJ 1249, Section 256 CrPC has been held to be applicable in a complaint filed under Section 138 of the NI Act.

It is apt to reproduce Section 256 CrPC herein:

Nonappearance 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: 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.

(2) The provisions of subsection (1) shall, so far as may be, apply also to cases where the nonappearance of the complainant is due to his death.

Section 256 CrPC provides 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 this Section also empowers the Magistrate to dispense with the complainant from his personal attendance if it is found not

necessary and to proceed with the case. Also, when 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 complainant on the date of

hearing, it becomes final and it cannot be restored in view of Section 362 CrPC, which reads as under:

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.

Keeping in view the effect of dismissal of complaint under Section 138 of the NI Act, the apex Court in case titled as Associated Cement Co.

Ltd. versus Keshvanand, reported in (1998) 1 Supreme Court Cases 687, after discussing the object and scope of Section 256 CrPC, has held

that, though, the 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 has duty to acquit the accused in invitum. It has further been held in the said judgment that the

discretion under Section 256 CrPC must be exercised judicially and fairly without impairing the cause of administration of criminal justice.

Similarly, the apex Court in case titled as Mohd. Azeem versus A. Venkatesh and another, reported in (2002) 7 Supreme Court Cases 726,

has considered dismissal of the complaint on account of one singular default in appearance on the part of the complainant as a very strict and unjust

attitude resulting in failure of justice.

Also in case titled as S. Anand versus Vasumathi Chandrasekar, reported in (2008) 4 Supreme Court Cases 67, wherein the complaint under

Section 138 of the NI Act was dismissed by the trial Court exercising the power under Section 256 CrPC 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, the apex Court has considered as to whether provisions of Section 256 CrPC, providing for disposal of a complaint in default, could have

been resorted to in the facts of the case as the witnesses on behalf of the complainant have already been examined and it has been held that in such

a situation, particularly, when the accused had been examined under Section 313 CrPC, the Court was required to pass a judgment on merit in the

matter.

This Court in N.K. Sharma''s case (supra) also, relying upon in Associated Cement Co. Ltd.''s case (supra), has held that when the Court

notices that complainant is absent on a particular day, the Court must consider 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 CrPC.

This Court in another case titled as Boby versus Vineet Kumar, reported in Latest HLJ 2009 (HP) 723, has reiterated ratio of law laid down

in N.K. Sharma'' case (supra), again relying upon in Associated Cement Co. Ltd.''s case (supra).

Coordinate Bench of this Court in Criminal Appeal No. 367 of 2015, titled as Vinod Kumar Verma versus Ranjeet Singh Rathore, decided on

6th May, 2016 and Criminal Appeal No. 559 of 2017, titled as Harpal Singh versus Lajwanti, decided on 13th October, 2017, has held that

dismissal of the complaint in default for nonappearance of the complainant on the date fixed without affording him even a single opportunity is

unjustified.

Relying upon N.K. Sharma'' case (supra), learned counsel representing the respondent has contended that the trial Court was empowered to

dismiss the complaint on failure of complainant to appear in the Court on a day fixed and in present case, the complainant and his counsel had

failed to appear on the date fixed without any reason and, therefore, the Magistrate was having no option other than to dismiss the complaint.

It is true that Magistrate has a discretion to dismiss the complaint for default resulting into acquittal of the accused. However, in present case,

for the discussions made hereinafter, I am not in agreement with the contention of the learned counsel for the respondent.

It is also submitted by learned counsel for the respondent that a Civil Suit involving the amount of cheque under consideration for recovery of

Rs.25,40,000/has been decreed exparte against the respondent wherein the respondent has undertaken proceedings for setting aside the exparte

decree. Further, that it would be appropriate to dismiss this appeal and let the parties to determine their right decided in the Civil Court. This

contention is also not tenable as the complainant has right to file criminal as well as civil proceedings independent of each other and these

proceedings are to be decided on its own merit having no influence of the findings recorded in one case on the other.

Keeping in view the effect of dismissal in default, the Magistrate is supposed to exercise his discretion with care and caution clearly mentioning

in the order that there was no reason for him to think it proper to adjourn the hearing of the case to some other day.

In present case, the case was at advance stage of hearing, statement of respondent under Section 313 CrPC had been recorded and case was

fixed for recording defence evidence. The complainant was duly represented by the counsel, but his counsel has also failed to put in appearance

before the Magistrate for which complainant may not be held liable directly, rather, absence of the complainant, as he has engaged a counsel to

represent him, may be considered as justified under the bona fide belief that the counsel may attend his complaint in his absence. For recording

statements in defence, presence of complainant was not necessary. Even, crossexamination on his behalf would have been conducted by the

counsel appointed by him, but, the effect of absence of counsel for the complainant would have been that crossexamination of witnesses could not

have been done, but so far as recording of evidence is concerned, the Court might have proceeded further in recording the evidence in defence.

The facts of present case are identical to the facts involved in S. Anand''s case (supra).

In view of the ratio of law laid down by the apex Court and other judgments of the High Courts, including this Court, I am of the opinion that

the learned Magistrate was not justified in dismissing the complaint in default for single absence of the complainant coupled with failure of his

counsel to attend the date. From the stage of complaint, it is evident that presence of complainant, on that day, was unnecessary as the case was at

final stage. The Magistrate instead of dismissing the complaint in default should have adjudicated upon the complaint on merit and for that purpose,

he might have adjourned the case for a future date.

In the impugned order, there is no finding of the Magistrate that the complainant was not pursuing the complaint honestly and diligently. There is

no reference of previous history, if any, with regard to conduct of the complainant causing unnecessary delay on account of adjournments sought

by him or for want of his presence. There is only reference of his absence on the date since morning till postlunch session. Therefore, acquittal of

the accused without adjudicating the case on merits, due to nonappearance of the complainant on the date of defence evidence, who was sincerely

pursuing his remedy, is improper. In normal circumstance, no complainant will be disinterested in pursuing his complaint without any reason,

particularly, when it is at final stage of trial involving stake of Rs.20 lakhs. It was a fit case for the Magistrate to exercise his discretion to adjourn

the case for a subsequent date.

In view of above facts, circumstances and discussion, I am of the view that there is merit in the appeal and it deserves to be allowed.

Accordingly, appeal is allowed and impugned order, dated 30th October, 2008, passed by learned Judicial Magistrate 1st Class, Jubbal

(hereinafter referred to as ""Magistrate"") in Case No. 18/3 of 2005, is set aside and complaint before Judicial Magistrate 1st Class, Jubbal is

ordered to be registered to its original number and directed to be decided in accordance with law.

Parties are directed to appear before the Magistrate on 23rd February, 2018.

Appeal is allowed in above terms alongwith all pending applications, if any.