Panchmukhi Tiles And Sanitary vs State Of Chhattisgarh

This petition has been preferred under Section 482 of the Code of Criminal Procedure (for short 'the Code') against order dated 23.12.2021 passed by Judicial Magistrate First Class, Raipur (CG) in unregistered Complaint Case filed under Section 138 of the Negotiable Instruments Act, 1881 (for short ' the Act'), wherein learned trial Court has dismissed the complaint filed by petitioner for want of prosecution.

Learned counsel for the petitioner would submit that the complaint case under Section 138 of the Act was filed by petitioner on December, 2022 thereafter, due to Covid 19 pandemic, hearing was disturbed. On 07.10.2021, when case was taken up for hearing, counsel for petitioner marked his appearance, thereafter, case for fixed for hearing on 22.12.2021, thereafter, the case was fixed for hearing on the very next date i.e., on 23.12.2021, on that date another case no.801/2022 of like nature was also fixed for hearing before the same Court, in that case counsel for petitioner marked his appearance, but, due to bonafide mistake he could not mark his presence in the instant case and therefore, the case was dismissed for want of prosecution. It is further submitted that mistake committed by counsel for petitioner is purely bonafide and he wants to prosecute the case, therefore, it is prayed that considering the aforesaid fact the instant petition may be allowed and case may be restored in the interest of justice.

Heard learned counsel for the petitioner, perused the order impugned as well as material available on record.

In order to have proper appreciation of the issue in question, it would be profitable to notice Section 256(1) of the CrPC, which provides as under:-

“Section 256 : Non-appearance 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 herein before 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 sub-section (1) shall, so far as may be, apply also to cases where the non-appearance of the complainant is due to his death.”

From the careful and close perusal of Section 256 of the Code, it appears that in a summons case, instituted on a complaint, if the complainant is absent on the date of hearing, the Magistrate has to follow either of the three courses, namely:

1) Acquit the accused;

2) To adjourn the case’ and

3) To dispense with the attendance of the complainant and to proceed with the case.

Considering the provisions of Section 256 of the CrPC, Hon’ble Apex Court in the matter of Associated Cement Co. Ltd. Vs. Keshvanand reported in (1998) 1 SCC 687 held as under:

“17. 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 does 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 Mohd. Azeem Vs. A. Venkatesh & another reported in (2002) 7 SCC 726, Hon'ble the Apex Court held that in a proceeding under Section 138 of the Negotiable Instruments Act, 1881, the single default with respect to appearance on the part of the complainant, the dismissal of the complaint case is not proper, legal and justified.

Thus, careful perusal of the provisions of Section 256 of the Code, and aforesaid case laws would show that before proceeding to dismiss the complaint in absence of complainant in exercise of jurisdiction under 256 of the Code, it must be considered by the Court whether the presence of the complainant is really necessary and the Court should act judicially and not capriciously as the duty has been cast on the Court to consider whether the personal appearance of the complainant is necessary or not. The discretion vested in the Court should be exercised carefully and not hastily.

It is trite law that all the cases should decide on merit and not on such type of technical ground without deciding the issue between the parties and without providing opportunity to adduce evidence because order of acquittal under Section 256 of the Code bar fresh trial and therefore, such order has immense significance.

Perusal of impugned order would show that on 7.1.2021, petitioner/ complainant was represented through his counsel, but, on the next date of hearing i.e., on 22.12.2021 and the very next date of hearing i.e., on 23.12.2021, petitioner was neither present before the Court nor represented by his counsel and process fee was also not paid by petitioner/ complainant, therefore, by considering the aforesaid facts his case was dismissed for want of prosecution on 23.12.2021. As stated by learned counsel for the petitioner that in another case, on same date, he was present and argued the case, but, due to bonafide mistake he forgot to mark his presence in the instant case.

Considering the aforesaid facts and particularly considering the provisions of Section 256 of the Code and the law laid down by the Hon'ble Supreme Court in aforesaid cases, it is found that non-appearance of petitioner or his counsel on 23.12.2021 was bonafide and petitioner wants to prosecute the case. Further, it has not been recorded by the trial Court that presence of the petitioner/complainant was very much necessary on 23.12.2021 and reasons assigned by the trial Court, as to why the case should not have been adjourned to some other date, does not seem to be sufficient as petitioner wants to prosecute his case.

Resultantly, the petition is allowed. Unregistered complaint case titled Panchmukhi Tiles and Sanitary through Proprietor Preeti Dubey vs. Ayush Traders Proprietor Dhamendra Singh is restored to its original number in the file of Judicial Magistrate First Class, Raipur for hearing and disposal in accordance with law on its own merits. Petitioner/ complainant is directed to appear before the said Court on 21.11.2022.

Accordingly, the CrMP is allowed in the motion stage itself.