R.P. Jakhmola vs State Of Uttarakhand & Others

R.C. Khulbe, J

The appellant-R.P. Jakhmola has filed the present appeal, under Section 378 (4) Cr.P.C., against the judgment and order dated 16.11.2006 passed

by the 1st ACJM, Dehradun in Criminal Complaint Case No. 3283 of 2006 “R.P. Jakhmola v. Vinod Kumar Thapaâ€, whereby the respondent-

Vinod Kumar Thapa was acquitted under Section 138 of the Negotiable Instruments Act.

Brief facts of the case are that the appellant-R.P. Jakhamola filed Complaint No. 3283 of 2006 “R.P. Ja khmola v. Vinod Kumar Thapaâ€

before the ACJM, Dehradun under Section 138 of the Negotiable Instruments Act. After recording the statement of the complainant, under Section

200 Cr.P.C., the respondent-Vinod Kumar Thapa was summoned, under Section 138 of the Negotiable Instruments Act, by the ACJM, Dehradun on

12.08.2005. Thereafter, 16.11.2006 was fixed in the case. On that day, both the complainant as well as his counsel was absent. Accordingly, the

complaint was dismissed under Section 256 Cr.P.C. and the respondent-Vinod Kumar Thapa was acquitted under the above offence.

Aggrieved thereby, the present appeal has been filed by the complainant under Section 378(4) Cr.P.C. After admitting the appeal, summons was

issued against the respondent-Vinod Kumar Thapa, but none was present on behalf of the respondent despite sufficient service.

It is argued by the learned counsel for the appellant that the appellant was not physically fit for being present before the trial Court. Since, he could

not inform about this to his counsel, on that day, when the matter was taken up before the trial Court for further proceedings, the complaint was

dismissed for want of complainant.

Learned counsel for the complainant submits that the complainant is ready to proceed with the matter and will put his appearance every day before

the Court concerned, and will take steps as per Rules.

From a perusal of the lower Court’s Record, it is clear that the respondent-Vinod Kumar Thapa was summoned by the learned ACJM,

Dehradun on 20.09.2005 under Section 138 of the Negotiable Instruments Act. The matter was fixed on 16.11.2006 for further orders. On that day,

neither the appellant, nor his counsel, was present before the trial Court.

From the record, it is clear that the matter was fixed for appearance of the respondent-Vinod Kumar Thapa, but on that day, the complainant was

absent.

Section 204 Cr.P.C. is quoted hereunder:-

“204. Issue of process.- (1) If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case

appears to be-

(a) a summons- case, he shall issue his summons for the attendance of the accused, or

(b) a warrant- case, he may issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before

such Magistrate or (if he has no jurisdiction himself) some other Magistrate having jurisdiction.

(2) No summons or warrant shall be issued against the accused under sub- section (1) until a list of the prosecution witnesses has been filed.

(3) In a proceeding instituted upon a complaint made in writing every summons or warrant issued under sub-section (1) shall be accompanied by a

copy of such complaint.

(4) When by any law for the time being in force any process- fees or other fees are payable, no process shall be issued until the fees are paid and, if

such fees are not paid within a reasonable time, the Magistrate may dismiss the complaint.

(5) Nothing in this section shall be deemed to affect the provisions of section 87.â€​

From a perusal of Sub-Section 4 of Section 204 Cr.P.C., it is clear that, when by any law for the time being in force any process-fees or other fees

is payable, no process shall be issued until the fees is paid and, if such fees is not paid within a reasonable time, the Magistrate may dismiss the

complaint.

In the present matter, since the appellant has already paid the process fees before the concerned Court, it was the duty of the concerned Court to

issue process as per the provisions of Cr.P.C. against the present respondent-Vinod Kumar Thapa, but the concerned Court did not issue the process

against the respondent for his appearance. The concerned Court simply dismissed the complaint under Section 256 Cr.P.C. which was not proper.

In the facts and circumstances of the case, the present appeal, filed by the appellant under Section 378(4) Cr.P.C., is liable to be allowed.

Accordingly, the present appeal is allowed and the order dated 16.11.2006 passed by the CJM, Dehradun, in Criminal Complaint No. 3283 of 2006, is

set aside. The matter is remanded back to the trial Court to proceed with the matter as per law. The appellant is directed to appear before the Court

concerned on 20.12.2019.

Registry is directed to send the copy of the Lower Court’s Record forthwith to the Court concerned.

Pending applications, if any, also stand disposed of accordingly.