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2023 Supreme(Raj) 1780
IN THE HIGH COURT OF RAJASTHAN AT JAIPUR BENCH
ASHOK KUMAR JAIN, J.
Rajkumari Bhandari - Appellant
Versus
Ashok Kumar Jain - Respondent
S.B. Criminal Appeal No. 2301 of 2022
Decided on : 17-05-2023
Advocate Appeared:
For the Appellant : Ms. Apeksha Tiwari and Mr. Rajat Choudhary for Mr. Ajatshatru Mina.
For the Respondent: Mr. Vikas Kabra, Mr. Imran Khan, PP.
Headnote:(A) Negotiable Instruments Act, 1881 - Section 138 - Code of Criminal Procedure, 1973 - Section 256 and Section 378(4) - Dismissal of complaint for non-appearance of complainant constitutes acquittal - Absence of complainant may be justified due to medical reasons - Appeal allowed, complaint restored with directions to conclude trial within four months. (Paras 1-15)
(B) Provisions of Code of Criminal Procedure allow for the appointment of a commission for witness evidence when required. (Para 9)
Facts of the case:
The appellant-complainant was absent during hearings, leading to the dismissal of her complaint regarding two dishonored cheques totaling Rs. 45 Lakhs. The court noted her medical ailments and the absence of her representation in the trial court on several occasions.
Findings of Court:
The appellant's absence was not established as willful neglect, and her medical condition warranted restoration of the complaint. The trial court's dismissal was set aside, mandating two opportunities for the complainant to conclude her evidence within a specified timeframe.
Issues: The primary issue was whether the absence of the complainant on one occasion justifies the dismissal of the complaint and if adequate reasons for absence were provided.
Ratio Decidendi: The court emphasized that dismissal for absence cannot be justified without considering the merits of the case and the justification for non-appearance, particularly in significant monetary matters.
Result: Appeal allowed, the trial court's order set aside.
| Table of Content |
|---|
| 1. aggrieved appellant seeks restoration of complaint. (Para 1) |
| 2. arguments made on relevant case law regarding absence. (Para 2 , 6 , 11) |
| 3. court observations on trial court's absence ruling. (Para 3 , 4 , 5 , 10 , 12) |
| 4. legal provisions regarding witness examination commissions. (Para 8 , 9 , 14) |
| 5. final ruling to restore complaint and conclude trial. (Para 15 , 16 , 17) |
JUDGMENT :
Ashok Kumar Jain, J. - Instant appeal after leave is preferred aggrieved from order dated 26.07.2022 in Regular Criminal Case No.619/2018 passed by learned Special Metropolitan Magistrate (N.I. Act, Cases) No.6, Jaipur Metropolitan-I, Jaipur whereby respondent-accused was acquitted from charge under Section 138 N.I. Act, when complainant-appellant and her counsel remained absent and matter was not prosecuted further.
2. Learned counsel for the appellant while relying upon V.K. Bhat v. G. Ravi Kishore & Ors. reported in (2016) 13 SCC 243 and K.B. Vedamurthy v. Laxven Chits Pvt. Ltd. , reported in (2020) 5 KCCR 914 submitted that against dismissal of complaint under Section 256 Cr.P.C. leave to appeal is maintainable and only remedy lies with appellant-complainant is to file a leave to appeal before Hon'ble court. Further, it is contended that appellant is a senior citizen and she is suffering from ailments for which medical documents were filed to justify the reasons of absence of complainant-appellant. She further submitted that on almost all occasions counsel for appellant was present but no effective proceedings were conducted by learned trial court due to other engagements but one occasion when counsel for appellant failed to appear at a particular time then all of sudden, the matter was called and was dismissed by learned trial court. She further submitted that on disclosure of sufficient reason, if petition is not restored then irreparable loss would be suffered by appellant, as the matter pertains to dishonour of two cheques for Rs. 45 Lakhs. She further submitted that in future they would take care that unnecessary adjournments may not be sought by them.
3. Aforesaid contentions were opposed by learned counsel for the respondent on the ground that the order-sheets clearly indicated that complainant was not appearing for evidence and on last few occasions as neither complainant nor her counsel remained present so as to conduct the prosecution before learned trial court. He further submitted that criminal complaint case was pending for several years and appellant was deliberately delaying the same. But after affording sufficient opportunities, if complaint was dismissed then it cannot be said that learned trial court had committed any error in dismissing the aforesaid for want of prosecution. He further submitted that no sufficient reason was shown for absence on 26.07.2022 and prior to that, therefore, this appeal is liable to be dismissed with heavy cost.
4. Heard learned counsels for the appellant and respondent.
5. Perused the material available on record along with case file. Also perused the judgments of Hon'ble Apex Court and other Hon'ble High Courts.
6. Learned counsel for the appellant firstly relied upon the judgment in the case of V.K. Bhat v. G. Ravi Kishore & Ors. (supra) wherein Hon'ble Supreme Court held that dismissal of complaint for none appearance of complainant amounts to acquittal as contemplated in Section 256 of Cr.P.C. Similarly, in the case of K.B. Vedamurthy v. Laxven Chits Pvt. Ltd. (supra) the Karnataka High Court while relying upon V.K. Bhat case (supra) have permitted complainant to approach under Section 378(4) Cr.P.C. against dismissal of complaint.
7. Aforesaid two judgments were submitted to buttress arguments that against dismissal of complaint under Section 256 Cr.P.C. leave to appeal under Section 378(4) Cr.P.C. is maintainable. Herein, after filing of this leave to appeal, leave was already granted on 01.11.2022, therefore, these two judgments have got no relevance as of now because no one ha
