Lalit Kumar Vaidya vs Devinder Sain @ Bhupender Sain

Anoop Chitkara, J

Challenging the dismissal of complaint filed under Section 138 of the Negotiable Instruments Act due to absence of complainant, discharging the

accused of the offence, the appellant/complainant has come up before this Court, seeking reversal of order dated 27.10.2020, passed by learned

Judicial Magistrate 1st Class, Court No.2, Mandi, H.P.

The complainant had filed a complaint for dishonour of a cheque amounting to Rs. 1.30 lacs issued by the respondent/accused, for the insufficient

funds in the account.

As per para-3 of the appeal after preliminary evidence, the Court took cognizance of the offence and issued notice against the accused, which

remain unserved.

The petitioner is aggrieved by the order dated 27.10.2020, whereby the concerned Judicial Magistrate dismissed the complaint for non-prosecution

due to absence of the complainant.

I have heard Mr. H.S. Rangra, learned counsel for the appellant and Ms. Mamta Bhatwan, learned Legal Aid Counsel for the respondent and also

gone through the entire record.

A perusal of the order dated 27.10.2020 reveals that this case was called on three occasions, however, the complainant did not appear.

Consequently, when this matter was again called after lunch for third time, then it is already 4:30 pm and learned Judicial Magistrate has dismissed the

case for non-prosecution and discharged the accused.

Petitioner has stated, on affidavit, in para-4 of Cr.MP No. 310 of 2021 as well as in Cr. Appeal No. 22 of 2021 that due to Covid-19 pandemic, the

proceedings were being conducted through video conference and the parties were not allowed to attend the Court and due to this reason he could not

appear in the Court. The explanation offered by the complainant is very reasonable and extremely probable. We are aware that in Covid-19 pandemic,

it is very difficult for the accused, complainant and witnesses to put in appearance for the factors beyond their control. As such the Court should not

have dismissed the matter due to non-prosecution and should have taken other recourses.

A Co ordinate Bench of this Court in case titled as Pooja Sharma Vs. Suresh Kumar, 2019 Supreme (HP) 18 (Cr. Appeal No. 469 of 2018), has

discussed the similar proposition of law in detail and observed that in normal circumstances, no complainant will be disinterested in pursuing his

complaint without any reason. The aforesaid reasoning applies in the present case on all force.

Given above, in the entirety of facts and circumstances peculiar to this case, the appeal is allowed and order dated 27.10.2020 passed in case NI

Act No. 692-III/17, titled as Lalit Kumar Vaidya Vs. Devinder Sain alias Bhupender Sain is set aside and the complaint is ordered to be restored to its

original number. The parties in person or through their learned counsel are directed to appear before the learned trial court on 2.8.2021 and in case of

failure then on 9.8.2021 and again in failure then on 16.8.2021. In case petitioner fails to appear on all those three occasions, then it shall be open for

the concerned Judicial Magistrate to pass appropriate orders in accordance with law. Registry is directed to send back the entire record forthwith to

the learned trial court.