M/S Sai Automobiles Through Its Prop Sh. Atul Doger vs Parvati Devi

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 26.4.2008, passed by learned Judicial

Magistrate 1st Class, Court No.2, Shimla, H.P.

The complainant had filed a complaint for dishonour of a cheque amounting to Rs. 55,000/- issued by the respondent/accused, for the insufficient

funds in the account.

The petitioner is aggrieved by the order dated 26.4.2008, whereby the concerned Judicial Magistrate dismissed the complaint for non-prosecution

due to absence of the complainant.

I have heard Mr. Sumit Raj Sharma, learned counsel for the appellant and Mr. Neeraj Gupta, learned Senior Counsel for the respondent and also

gone through the entire record.

Mr. Sumit Raj Sharma, learned counsel for the petitioner referred to para-1 of the appeal and stated that on 26.4.2008 Lok Adalat was organized

and as such his counsel gave telephonic instructions that cases will not be taken up. He referred para-1 of the petition, which reads as follows:-

“That the appellant has preferred a complaint against the respondent under Section 142 read with Section 138 of the Negotiable

Instruments Act which was listed on 26.4.2008 for complainant evidence. That on 26.4.2008 the complainant who has shifted his base to

Vaknaghat Distt. Solan started from Vaknaghat for Shimla to attend the above matter but was delayed to reach the court and only reached

at around 11:00 am on 26.4.2008. That Ld. Judicial Magistrate 1st Class Court No.2 Shimla was holding Lok Adalat on 26.4.2008 and thus

on reaching to the court the complainant found that the court was closed and the reader of the court was also not there as he also had gone

to the Lok Adalat. That the complainant on seeing the court room being closed presumed that the Ld. Presiding Officer was not holding the

court and accordingly informed his counsel telephonically that the court was on holiday and the complainant went back to Vaknaghat. That

since the complainant had informed his counsel that the court was not being held the counsel also did not come to the court premises

presuming that the complaint would be fixed for proper order and shall verify the next date on 28.4.2008 i.e. Monday. That on 28.4.2008

when the counsel for the complainant came to court to inquire about the date he was informed by the court staff that the matter had been

taken u the Hon’ble Court after lunch hours and had been ordered to be dismissed in default. The counsel immediately applied for the

copy of the order dated 26.4.2008 and after the procuring the same the present appeal is being filed immediately.â€​

Mr. Neeraj Gupta, learned Senior Counsel appearing for the respondent/accused referred to order sheets and pointed out that the complainant was

habitual absentee and for that reason he does not deserve any leniency and discretion. He further argued that after so much of time, the matter should

not be re-opened and the acquittal of the accused should not be set aside.

To answer the arguments of Mr. Gupta, learned Senior Counsel, it would be incumbent to refer to all the order sheets in this case.

(i) The matter was firstly taken up on 7.12.2004, when complainant was present and the matter was got registered. After that on the next

date i.e. 6.1.2005, again complainant was present and notices were issued to the accused.

(ii) On 2.5.2005, complainant was present but accused was absent.

(iii) On 19.7.2005, complainant was present but despite service accused was absent and her presence was ordered to be procured through

bailable warrants.

(iv) On 29.9.2005, complainant was present but accused was again absent and her presence was also procured through bailable warrants.

(v) On 29.11.2005, both complainant and accused were present and on that day accused was directed to furnish personal bond in the sum

of Rs. 5,000/- with one surety of the like amount, which were furnished, attested and accepted and case was ordered to be listed for

consideration on 16.1.2006.

(vi) On 16.1.2006, complainant was present but accused was absent and her presence was again procured through bailable warrants.

(vii) On 17.4.2006, complainant was present but accused was absent and fate remains the same.

(viii) On 14.6.2006, exemption on behalf of complainant was sought for and the same was allowed for that day only. Accused remained

present.

(ix) On 17.8.2006, exemption on behalf of both the parties were sought for and the same was allowed and the case was ordered to be fixed

on 11.9.2006.

(x) On 11.9.2006, both the parties were present.

(xi) On 13.10.2006, none appeared for both the parties.

(xii) On 18.11.2006, none appeared for both the parties.

(xiii) On 18.1.2007, none appeared for both the parties.

(xiv) On 28.2.2007, complainant was present but accused was absent and the notices sent to him were not received back either served or

unserved and a fresh notice was ordered to be issued for 4.4.2007.

(xv) On 4.4.2007, both the parties were present.

(xvi) On 24.7.2007, none appeared for both the parties.

(xvii) On 7.6.2007, none appeared for both the parties.

(xviii) On 12.7.2007, none appeared for both the parties.

(xix) On 23.8.2007, both the parties were present.

(xx) 25.9.2007, complainant was present but accused was absent and applications for exemption on behalf of both the parties were sought

for and the same were allowed.

(xxi) On 7.11.2007, both the parties were present and Notice of Accusation was put to the accused, to which he pleaded not guilty and

claimed trial.

(xxii) On 16.1.2008, exemption on behalf of both the parties were sought for and the same were allowed.

(xxiii) On 26.4.2008, complainant was absent and accused was present and on which date the learned trial court dismissed the complaint in

default for want of prosecution.â€​

A perusal of all the order sheets reveals that both the parties were absent on so many occasions, thus to blame the complainant alone for absence

would not be appropriate.

The explanation offered by petitioner in para-1, as extracted above, I am of the considered opinion that it was inappropriate and uncalled for the

concerned Judicial Magistrate to have dismissed the complaint for non-prosecution and discharged the accused. The learned trial court should have

resort to other means instead of closing the case.

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 of this case, the appeal is allowed and order dated 26.4.2008 passed in Complaint No.669/3

of 2004, titled as M/s Sai Automobiles through its Prop. Sh. Atul Doger and another 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.