Harsh Bansal vs Kamal Soni

The present petition has been preferred against the order dated 08.08.2022 passed by the learned Chief Judicial Magistrate, Surajpur (C.G.), whereby the case filed by the petitioner under Section 138 of Negotiable Instrument Act has been dismissed for want of prosecution.

It appears from the order sheets of the Trial Court that the petitioner was continuously appearing before the Court, but on 08.08.2022, neither he nor his lawyer were present, as a result of which the case was dismissed for want of prosecution.

In the matter of Associated Cement Co. Ltd. Vs. Keshvanand reported in (1969) 1 SCC 687, Hon'ble the Apex Court held as under:-

“18. Reading the Section in its entirety would reveal that two constraints are imposed on the court for exercising the power under the Section. First is, if the court thinks that in a situation it is proper to adjourn the hearing then the Magistrate shall not acquit the accused. Second is, when the Magistrate considers that personal attendance of the complainant is not necessary on that day the Magistrate has the power to dispense with his attendance and proceed with the case. When the Court notices that the complainant is absent on a particular day the court must consider whether personal attendance of the complainant is essential on that day for progress of the case and also whether the situation dos not justify the case being adjourned to another date due to any other reason. If the situation does not justify the case being adjourned the court is free to dismiss the complaint and acquit the accused. But if the presence of the complainant on that day was quite unnecessary then resorting to the step of axing down the complaint may not be a proper exercise of the power envisaged in the section. The discretion must, therefore, be exercised judicially and fairly without impairing the cause of administration of criminal justice.”

Again, in the matter of Anand Kumar Agrawal Vs. Pawan Sahu in CRMP/943/2019 vide order dated 15.04.2019 this Court held in para 7 that:-

“7. Dismissal of the complaint case was not the only option before the trial Court. The trial Court could have adjourned the case to some other date as per the provisions of Section 256(1) Cr.P.C. The trial Court should have proceeded to serve summon to the respondent and after appearance of the respondent the case should have been decided on merits and it should not have been sent to record room without deciding issues between the parties and without providing opportunity to adduce evidence but that is not done in the present case, therefore, the order passed by the trial Court is not sustainable.”

Applying the aforesaid principles in the present case was well, it is clear that in the case in hand, the petitioner or his lawyer were continuously appearing before the Trial Court, but due to some or the other reason, they could not appear on 08.08.2022, as a result of which the case was dismissed for want of prosecution, which should not have been done, instead another opportunity could have been granted to the petitioner for his appearance and the case should have been decided on merits. Accordingly, the order dated 08.08.2022 is set-aside allowing the petition.

The Trial Court is directed to proceed with the case after appearance of the complainant and the case shall be decided on merits in accordance with law.

The petitioner is directed to appear before the concerned Trial Court on 01.03.2023.