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Andhra Pradesh High Court
DHANSI RAM AND SONS - Appellant
Versus
SUNIL BAJAJ - RESPONDENT
Decided On: 10-15-99
The court emphasized that the discretion of the court should be used judiciously in dismissing complaints in default, especially when the presence of the complainant is not necessary.
Headnote:
Section 138 - Negotiable Instruments Act - Dismissal of complaint in default
Fact of the Case:
The petitioner filed a complaint under Section 138 of the Negotiable Instruments Act against the respondent. The complaint was dismissed in default by the trial court.
Finding of the Court:
The court found that the dismissal of the complaint in default was unjustified as the complainant, a juristic person, was duly represented by its counsel and the complainant's presence was not necessary for the progress of the case.
Issues: Dismissal of complaint in default, necessity of complainant's presence
Ratio Decidendi: The court held that the trial court erred in dismissing the complaint in default when the presence of the complainant was not necessary, and that such dismissal resulted in a miscarriage of justice.
Final Decision: The impugned order was set aside, and the complaint was restored to its original number for trial in accordance with the law.
( 2 ) BRIEFLY, stated the facts giving rise to this petition are that the petitioner filed a complaint under Section 138 of the Negotiable Instruments, Act against the respondent. On 18. 2. 1998, the complainant was absent. The complainant s counsel moved an application claiming exemption from personal attendance, which was dismissed by the trial Court. After dismissing the said application, the learned Magistrate also dismissed the complaint in default. Aggrieved thereby, the petitioner has come up before this Court under Section 482 Criminal Procedure Code.
( 3 ) IT is significant to mention that the complainant is a propriety firm and the complaint was filed through its proprietor Prakash Chand Goyal on 18. 2. 1998, the petitioner firm being the juristic person was duly represented by its counsel. That being so, the complaint could not have been dismissed in default. That apart, there is nothing in the impugned order to indicate as to how on that day the presence of the complainant was necessary for further progress of the case. Where the presence of the complainant is not necessary, the Court should use its discretion and should not dismiss the complaint in default. Thus, the learned Magistrate has committed a patent legality in dismissing the complaint in default, which has resulted in flagrant miscarriage, of justice. Consequently, the impugned order dated 18. 2. 1998 cannot be allowed to stand.
( 4 ) LN the resut ,the petition is allowed and the impugned order dated 18. 2. 1998 is set aside. The complaint is restored to its original number. The teamed Metropolitan Magistrate is directed to proseed with the trial of the case in accordance with law.
( 5 ) PARTIES are directed to appear betore the trial court on 29. 11. 1999.
