Criminal Misc. No. 127-MA of 2009 [ 1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Misc. No. 9191 of 2009 and Criminal Misc. No. 127-MA of 2009 Date of decision: 18.8.2009 Gulshan Khanna .. Applicant v. State of Haryana and another .. Respondents CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL Present: Mr. R. S. Mamli, Advocate for the applicant. Ms. Ritu Punj, Deputy Advocate General, Haryana. Mr. Vikas Awasthi, Advocate for respondent No. 2. ..
Rajesh Bindal J.
Criminal Misc. No. 9191 of 2009 This is an application for condonation of delay of 29 days in filing the appeal.
For the reasons mentioned in the application, delay of 29 days in filing the appeal is condoned.
The application stands disposed of.
Criminal Misc. No. 127-MA of 2009 Challenge in the present application is to the order dated 7.11.2008, passed by learned Judicial Magistrate Ist Class, Kurukshetra, whereby the complaint filed by the applicant under Section 138 of the Negotiable Instruments Act, 1881 (for short, `the Act') was dismissed in default.
Briefly, the facts as stated in the application are that respondent No.2 issued a cheque in favour of the applicant for Rs. 60,000/- drawn on Punjab and Sind Bank. On presentation for encashment, the same was dishonoured. When in spite of reminder the payment was not made by respondent No. 2 to the applicant, notice was sent. Even on failure of respondent No. 2 to clear the amount of the cheque within the period prescribed, a complaint under Section 138 of the Act was filed on 16.7.2003. Because of non-appearance of the applicant on 7.11.2008, the complaint was dismissed for non-prosecution.
Criminal Misc. No. 127-MA of 2009 [ 2] Learned counsel for the applicant submitted that non-appearance of the applicant on the date fixed, when the complaint was dismissed for non- prosecution, was neither intentional nor wilful. In fact, the applicant had been appearing in the Court on each and every date of hearing and on that date, i.e., 7.11.2008, he could not appear due to death of the uncle (Fufar) of his wife. He further submitted that personal appearance of the applicant was not necessary as both the sides had led their evidence and the complaint was fixed for decision on an application filed by respondent No. 2 for re-calling the applicant for further examination.
On the other hand, learned counsel for the respondents submitted that appeal against the impugned order was not maintainable in this Court, therefore, the leave to appeal should not be granted. He further submitted that once the complainant had not appeared in court, there was no option available with the court except to dismiss the complaint in default.
Heard learned counsel for the parties and perused the record. The moot point is as to what course is to be adopted when the complainant does not appear or when a complaint filed before the court below is dismissed for non-prosecution.
The Judicial Magistrate while acting under Section 256 of the Code of Criminal Procedure has to take into consideration that the powers vested therein have to be exercised in the interest of justice. It is envisaged under the provision that in a given situation the Magistrate is even entitled to dispense with the attendance of the complainant and proceed with the case. The effort of the Magistrate should be to dispose of the cases on merits instead of dismissing them in default. Dismissal of a case in default unnecessarily delays the disposal of the same on merits as application for restoration of a petition challenging order of dismissal in default consumes more time than simply adjourning the case for a date. However, in case the absence is repeated, the court is not required to wait for a litigant. Repeated absence of the complainant cannot be ignored. If the absence is only on one date of hearing and prior thereto the complainant had been pursuing his case diligently, the court can consider adjourning the case for a date recording the reason therefor. Effort should not be to punish the complainant only on account of his non-appearance on one date. There should be application of mind before order of dismissal of complaint is passed merely on account of non-appearance on one date of hearing. The conduct of parties in totality is to be considered. Similar view has been expressed by this Court in Punjab State Civil Supplies Corporation Ltd. v. Mangat Rai, 2002(4) RCR (Crl.) 458. In the present case, Criminal Misc. No. 127-MA of 2009 [ 3] the complainant was pursuing the complaint ever since the same was filed on 16.7.2003, till the same was dismissed for non-appearance on 7.11.2008.
As to what course is to be adopted when the complaint has been dismissed for non-prosecution and the application for restoration thereof is not maintainable, has already been considered by this Court in Criminal Misc. No. 36522-M of 2006, titled as Purushotam Mantri v. Vinod Tandon, decided on 30.11.2008. While relying upon an earlier judgment of this Court in Jitender Bajaj v. State (U. T. Chandigarh) and others, 2005 Criminal Law Joural 3136 it was held that the application for restoration of complaint filed under Section 138 of the At was not maintainable, however, in case sufficient cause is shown for non- appearance, this court can certainly exercise the power under Section 482 Cr.P.C. for setting aside the order of dismissal of the complaint and discharge of the accused. The relevant para of judgment in Purushotam Mantri's case (supra) is extracted below:
"Learned counsel for the petitioner did not dispute that application filed by the petitioner before the court below for recalling the order was not maintainable and accordingly the same was rightly dismissed by the court below. However, submission is that this Court under Section 482 of the Code can certainly direct restoration of the complaint, which was dismissed in default if sufficient reason is found for his non-appearance on the date fixed. For the purpose he has relied upon the observations made by this Court in Jitender Bajaj v. State (U.T. Chandigarh) and others, 2005 Crl. L. J. 3136, which are reproduced below:
"..... When the Magistrate, in a summon case, has dismissed the complaint and acquitted the accused due to absence of the complainant on the day of hearing, he cannot later on restore the complaint and set aside the order of acquittal, even if the complainant shows very good reasons for his failure to be present on the day of dismissal of the complaint. In such situation, the only remedy available with the complainant is to file appeal or revision against such order or petition under Section 482 of the Code before this Court for setting aside the said order of dismissal of the complaint and acquittal of the accused on the ground that in the given facts and circumstances, the dismissal of the complaint and acquittal of the accused was not justified or there were sufficient reasons Criminal Misc. No. 127-MA of 2009 [ 4] for non-appearance of the complainant before the court on the date fixed, or the Magistrate has not properly exercised his discretion while not adjourning the complaint and dismissing the same."
The same was followed by this Court in Criminal Misc. No. 67626-
M of 2006 - Om Parkash v. M/s Golden Forest India Ltd. and others, decided on 19.2.2008.
If the enunciation of law, as extracted above, is applied in the facts and circumstances of the present case, it is found that the complaint filed by the applicant was dismissed for non-prosecution on 7.11.2008 and the bona fide of the applicant is established from the fact that he had been appearing on each and every date of hearing earlier and on one date could not appear because of bereavement in the family. Merely on that account, the complaint should not have been dismissed in default.
For the reasons stated above, while accepting the application, the leave to appeal is granted and the impugned order dated 7.11.2008 passed against the applicant is set aside. The Registry is directed to assign the criminal appeal number The complaint filed by the applicant is restored to its original number. The parties are directed to appear before the trial court on 5.9.2009 for further proceedings.
(Rajesh Bindal) Judge 18.8.2009 mk