Mukesh Kumar vs Sohan Lal

Sushil Kukreja, J

None has appeared on behalf of the respondent, despite repeated calls in the pre-lunch session and even during the post lunch session. It is pertinent to mention here that even on the last date of hearing, none had appeared on behalf of the respondent, therefore, the case was adjourned for today.

The present appeal has been filed under Section 378 of the Code of Criminal Procedure (Cr.PC) against the impugned order dated 14.12.2022, passed by the learned Chief Judicial Magistrate, Sirmour District at Nahan, H.P., in Criminal Complaint case No.86/3 of 2022, whereby the complaint filed by the appellant-complainant under Section 138 of the Negotiable Instruments Act (for short, ‘NI Act’) has been dismissed for want of prosecution.

It has been submitted by the learned counsel for the appellant that the appellant-complainant used to appear before the learned trial Court on each hearing, but on 14.12.2022, when the case was listed for service of the respondent through bailable warrant, he was not present and was under the impression that his counsel would appear on his behalf. However, on the said date, the counsel for the appellant also could not appear before the learned trial Court as his father was ill and he had taken his father to the hospital. Learned counsel for the appellant had requested one of his colleagues to appear on his behalf, who also failed to appear in the Court, hence, the learned trial Court dismissed the complaint for non appearance of the complainant-appellant, vide order dated 14.12.2022.

I have heard learned counsel for the appellant and also gone through the material available on record.

In Associated Cement Co. Ltd. Versus Keshvanand, (1998) 1 SCC 687, it has been held by the Hon’ble Supreme Court in para-16 of the judgment as under:-

“16.What was the purpose of including a provision like Section 247 in the old Code (or Section 256 in the new Code). It affords some deterrence against dilatory tactics on the part of a complainant who set the law in motion through his complaint. An accused who is per force to attend the court on all posting days can be put to much harassment by a complainant if he does not turn up to the court on occasions when his presence is necessary. The section, therefore, affords protection to an accused against such tactics of the complainant. But that does not mean if the complainant is absent, the court has a duty to acquit the accused in invitum.”

In Mohd. Azeem Versus A. Venkatesh and another, (2002) 7 SCC 726, it has been held by the Hon’ble Supreme Court in para-3 of the judgment as under:-

“3. From the contents of the impugned order of the High Court, we have noticed that there was one singular default in appearance on the part of the complainant. The learned Judge of the High Court observes that even on earlier dates in the course of trial, the complainant failed to examine the witnesses. But that could not be a ground to dismiss his complaint for his appearance (sic absence) on one single day. The cause shown by the complainant of his absence that he had wrongly noted the date, has not been disbelieved. It should have been held to be a valid ground for restoration of the complaint.”

In the instant case, after perusal of the material available on record and also keeping in view the law laid down by the Hon’ble Supreme Court, this Court is satisfied that the non-appearance of the appellant-complainant was neither intentional nor deliberate, but has occurred due to bona fide belief that his counsel would put in appearance on his behalf before the learned trial Court, who also could not appear due to the ill health of his father. Therefore, keeping in mind the facts and circumstances of the case and in the interest of justice, the impugned order dated 14.12.2022, dismissing the complaint in default for non appearance of the complainant, deserves to be set aside.

Hence, in view of the facts and circumstances of the case, the present appeal is allowed and the impugned order dated 14.12.2022 is set aside. The complaint filed by the appellant-complainant under Section 138 of NI Act is ordered to be restored to its original number. The trial Court shall decide the complaint on its merits in accordance with law. The appellant-complainant is directed to appear before the trial Court on 11.12.2023.

Pending miscellaneous application(s), if any, shall also stand disposed of.