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High Court Of Delhi
SHIV KUMAR - Appellant
Versus
MOHAMMND SAGIR - Respondent
Decided On : 12/05/1996
CRIMINAL PROCEDURE CODE - SECTION 256 - DISMISSAL OF COMPLAINT - DEFAULT OF APPEARANCE - DISCRETION OF MAGISTRATE - JUDICIAL EXERCISE - ADJOURNMENT OF HEARING - DISPENSING WITH ATTENDANCE OF COMPLAINANT - OPTIONS AVAILABLE TO MAGISTRATE - BEST AND MORE JUDICIOUS APPROACH.
Fact of the Case:
The appellant filed a complaint under Section 138 of the Negotiable Instruments Act against the respondents. The trial magistrate summoned the respondents and later, on the appellant's application, summoned their partners as well. On the date of hearing, the appellant and his counsel were absent, and the trial magistrate dismissed the complaint in default. The appellant challenged this order, arguing that his absence was due to a bona fide mistake and that the magistrate should have adjourned the hearing or dispensed with his attendance.
Finding of the Court:
The court held that the appellant's absence was due to a bona fide mistake and that the magistrate should have adjourned the hearing or dispensed with his attendance. The court also noted that the respondents had already received copies of the complaint and that they had challenged the order of summoning before the Sessions Judge, which indicated that they were aware of the case.
Issues: 1. Whether the appellant's absence was due to a bona fide mistake? 2. Whether the magistrate should have adjourned the hearing or dispensed with the appellant's attendance?
Ratio Decidendi: 1. The court held that the appellant's absence was due to a bona fide mistake because he had mistaken the date of hearing and had noted it down incorrectly in his counsel's diary. The court also considered the fact that the appellant had been appearing regularly before the trial magistrate prior to the date of the hearing. 2. The court held that the magistrate should have adjourned the hearing or dispensed with the appellant's attendance because he had other options available to him besides dismissing the complaint in default. The court noted that the respondents had already received copies of the complaint and that they had challenged the order of summoning before the Sessions Judge, which indicated that they were aware of the case.
Final Decision: The court allowed the appeal, set aside the impugned order, and restored the complaint to the stage at which it was dismissed in default. The court directed the trial magistrate to proceed further on the complaint in accordance with law.
( 1 ) THIS appeal by special leave is directed against the judgment dated May 20,1996 passed by Shri Sanjay Garg, M. M. , Delhi.
( 2 ) FACTS giving rise to the present appeal, in brief, are that Shiv Kumar, appellant, filed a complaint u/s. 138 of the Negotiable Instruments Act against Mohd. Saghir, respondent 1 and M/s. Mohd. Rafiq Mohd. Shafiq and Co. , respondent 2, on 11. 11. 91 and vide order dated July 4, 1994, both these respondents were summoned as accused for 9. 9. 94 by the trial Magistrate. Respondent 1 who appeared on 9. 9. 94 was admitted to bail. On that date itself appellant filed an application u/s. 319 Cr. P. C. and on that application Mohd. Atiq, Mohd. Abid, Mohd. Javed and Mst. Jamila Khatoon, respondents 3 to 6 being partners of respondent 2, were further ordered to be summoned as accused for 2. 3. 95 by the trial magistrate vide order dated 16. 1. 95. Thereafter on 14. 2. 96 respondent 1 put in appearance along with Shri M. P. Singh, Advocate and the latter made a statement that he will be producing the remaining respondents on the next date of hearing and the case was postponed to 27. 3. 96 for appearance of respondents 3 to 6. On that date respondents 3 and 5 appeared before the trial Magistrate and they too were admitted to bail. An application for seeking exemption was filed on behalf of respondents 4 and 6 through counsel and the same was allowed and the case was posted for 22. 4. 96 for appearance of respondents 4 and 6 did not appear, non-bailable warrants were ordered to be issued against them for 20. 5. 96. Thereafter on the application filed on behalf of respondents 4 and 6 for cancellation of non-bailable warrants, the case was taken up on 23. 4. 96 and the order for issuing of non-bailable warrants against both of them was recalled and they were admitted to bail. However, on 20. 5. 96 when respondents 1 and 3 to 6 were present and the complainant was absent, the case was ordered taken up again at 2 PM and at 2. 20 PM following order was passed by the trial Magistrate : "present : None for the complainant. All the accused are present. The presence of the complainant is required as he was supposed to supply copies of the complaint to the accused. Complaint is dismissed in default. Accused are discharged.
( 3 ) IT is this order which is under challenge in this appeal.
( 4 ) CONTENTION advanced by Shri G. D. Gandhi appearing for the appellant was two fold. First, that the appellant mistook the next date of hearing on 22. 4. 96 as 22. 5. 96 instead of 20. 5. 96 and on account of that bonafide mistake neither the appellant nor his counsel appeared on 20. 5. 96 when the impugned order was passed. In support of this contention Shri Gandhi relies on the case diary which is maintained by him in the normal course of his professional work besides bringing to our notice the fact that the complaint has been pending for nearly four and a half years and the appellant has been throughout appearing regularly before the trial Magistrate prior to May 20,1996. Second contention of Shri Gandhi, learned counsel for appellant is that in view of the provision contained in Section 256 Cr. P. C. the trial Magistrate in the circumstances of the case was not justified in dismissing the complaint in default of appearance of the complainant.
( 5 ) IN paras 6 and 7 of the memorandum of appeal the appellant has stated that he misheard and mistook the adjourned date as 22. 5. 96 and the same was immediately got noted down by him in the counsel s diary : that on appearance on 22. 5. 1996 in court he came to know that the complaint was actually fixed for 20. 5. 96 and was dismissed in default on that date. In support of the statements made in the memorandum of appeal and also the application filed u/s. 378 (4) Cr. P. C. appellant has filed his own affidavit dated 25. 7. 96. We are thus satisfied that the non-appearance on the part of appellant or his counsel on 20. 5. 90 was neither intentional nor can it be said t
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