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JAMMU AND KASHMIR HIGH COURT
Rajnesh Oswal, J.
M/s. Classic Enterprises – Petitioner
Versus
Gani Shyam – Respondent
CRMC No.60/2014 (O&M) c/w CRAA No.135/2010 (O&M),
CRAA No.136/2010 (O&M)
Decided on 11.2.2022
Negotiable Instruments Act, 1881 – Section 138 – Dishonour of cheque – Present petition has been filed by petitioner for quashing order dated 18.11.2013 passed by court of learned Sessions Judge, Jammu, whereby acquittal appeal filed by petitioner was dismissed and also for quashing order dated 20.08.2013 passed by court of Special Mobile Magistrate (Passenger Tax and Shops Act) Jammu, whereby complaint under Section 138 of Negotiable Instruments Act filed by petitioner was dismissed for want of prosecution evidence.
Held: As per the mandate of section 417 Cr PC, the acquittal appeal was required to be filed before this Court and not before the court of Sessions, as such, this Court is of the considered view that the acquittal appeal filed by the petitioner before the Sessions Judge, Jammu was not maintainable and any order passed dismissing the said acquittal appeal is of no consequence and for all purposes, the same order is required to be ignored. So far as the instant petition is concerned, the same has been treated as petition under section 561-A Cr.P.C (482 Cr.P.C). As the learned counsel for the respondent has not joined the issue with the other side with regard to the contention of the counsel for the petitioner for treating the present petition as appeal and also taking into consideration the judgment of Full Bench of Madras High Court in K. Rajalingam vs. R Suganthalakshmi), the present petition is treated as appeal against the order passed by the learned trial court ignoring the judgment passed by learned Sessions Judge Jammu.
It seems that the learned trial court has not gone through the minutes of the proceedings of the case as the respondent had been seeking opportunities time and again for settling the dispute amicably and it was not that for the last four years, the petitioner did not lead any evidence. As there is no acquittal of the respondent on merits but only for want of evidence due to absence of the petitioner, this Court is of the considered opinion that the order impugned is not sustainable in the eyes of law.
It is settled law that every attempt is required to be made to dispose of the lis on merits and in the instant case particularly when the respondent had himself sought number of opportunities for settling the dispute and had even made payment of Rs. 10,000/- in the court, the acquittal recorded by the learned trial court is not justified. As such, the present petition is allowed and the order dated 20.08.2013 is set aside.
A perusal of the record reveals that the learned trial court vide order dated 25.10.2008 had issued the process against the respondent and the respondent had caused his appearance before the learned trial court and the statement of the respondent was recorded under section 242 Cr.P.C on 19.03.2009 and the petitioner was directed to lead evidence. On 08.04.2010, both the parties were present and the accused sought time for compromise with the appellant and the file was posted for 08.05.2010 and on 08.05.2010 also, the similar submission was made by the respondent and the case was posted for 25.05.2010. On 25.05.2010 also, similar submission was made by the respondent and the case was posted for 27.07.2010. On 27.07.2010, 19.08.2010 and 22.09.2010, none had appeared on behalf of the parties. On 27.09.2010, the complaints were dismissed for non prosecution as neither the appellant nor the respondent was present. The learned trial court while recording of the acquittal has observed that the complainant despite repeated opportunities granted to him has not produced any witness in the complaint. It seems that the learned trial court has passed this orders impugned oblivious to the orders dated 08.04.2010, 08.05.2010 and 25.05.2010, when the respondent himself had sought time for out of the court settlement of the complaints. As there is no acquittal of the respondent on merits but only for want of evidence due to absence of the appellant, this Court is of the considered opinion that the order impugned is not sustainable in the eyes of law. It is settled law that every attempt is required to be made to dispose of the lis on merits and in the instant case, particularly when the respondent had himself sought number of opportunities for settling the dispute, the acquittal recorded by the learned trial court is not justified, as such, the both the orders dated 27.09.2010 passed in each of the complaints, are set aside. (Paras 9, 11, 12 & 20)
Result: Petition allowed.
JUDGMENT
Rajnesh Oswal, J.— CRMC No.60/2014
The present petition has been filed by the petitioner for quashing the order dated 18.11.2013 passed by the court of learned Sessions Judge, Jammu, whereby the acquittal appeal filed by the petitioner was dismissed and also for quashing order dated 20.08.2013 passed by the court of learned Special Mobile Magistrate (Passenger Tax and Shops Act) Jammu (hereinafter to be referred as the trial court), whereby the complaint under section 138 Negotiable Instruments Act (for short the Act) filed by the petitioner was dismissed for want of prosecution evidence.
2. It is stated that the petitioner had filed a complaint under section 138 of the Act against the respondent and the respondent sought number of opportunities to settle the dispute and had sought time to pay back the amount due to the petitioner. As the compromise was going on between the parties and the respondent had paid a sum of Rs. 10,000/- in the court, so the petitioner did not feel any need to produce any witness in support of the complaint. On 17.08.2013, when the matter was again taken up the learned trial court for the first time gave last and final opportunity to the petitioner to produce the witness and the matter was kept on 20.08.2013. On 20.08.2013, the petitioner along with his counsel appeared and requested the learned trial court to record the statement of the complainant/petitioner, but since the accused respondent herein was not present, therefore, the matter was passed over and the same was directed to be taken up for recording the statement of the petitioner after completion of all the criminal matters. Learned counsel for the petitioner along with the petitioner went to the court to get the statement of the petitioner recorded but instead the counsel for the petitioner was told that the complaint of the petitioner was dismissed in default as also for want of prosecution evidence.
3. Feeling aggrieved of order dated 20.08.2013, the petitioner filed an acquittal appeal before the Sessions Court Jammu, however, the learned Sessions Judge, Jammu vide order dated 18.11.2013 dismissed the appeal filed by the petitioner.
4. The petitioner being aggrieved of the orders passed by the learned trial court as well as learned Sessions Court, has filed the present petition for quashing both the orders on the ground that the reason for not producing the witness was that the compromise/negotiation was going on between the parties that is substantiated by the various court orders wherein the respondent himself stated that the matter was being settled between the parties and the respondent required some time to repay/reimburse the amount to the petitioner. Further the respondent has admitted his liability by paying an amount Rs. 10,000/- to the petitioner and had further sought time to repay back the amount to the petitioner. Therefore, the petitioner did not produce any witness in support of his complaint.
5. Mr. Ankesh Chandel, learned counsel for the petitioner has vehemently argued that the learned trial court has fallen in grave error of law while dismissing the complaint for non prosecution, particularly when the respondent had sought time to settle the matter and had even paid a sum of Rs. 10,000/- to the petitioner. He further submitted that the acquittal appeal filed by the petitioner was in fact wrongly filed as the same was required to be filed before this Court and further argued that the present petition is required to be treated as an appeal ignoring the judgment of Sessions Court. He placed reliance upon the judgment of the Full Bench of the Madras High Court in case, titled, K. Rajalingam vs. R Suganthalakshmi and others decided on 28.05.2020.
6. Per contra, Mr. Rajesh Kumar, learned counsel for the respondent did not raise any objection to the contention of the learned counsel for the petitioner that the present petition is required to be treated as an appeal, but he vehemently argued that the complain
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