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2020 Supreme(HP) 106
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Vivek Singh Thakur, J.
Shri Ram Transport Finance Company Ltd - Appellant
Versus
Manju Devi - Respondent
Criminal Appeal No. 351 of 2019
Decided On : 24-02-2020
Ashwani Kaundal, Advocate
The discretion to dismiss a complaint for default should be exercised judiciously, considering the necessity of the complainant's presence and the progress of the case.
Headnote:
N.I. Act - Dismissal of Complaint - Section 138 of the Negotiable Instruments Act - Section 256 CrPC
Fact of the Case:
The appellant filed a complaint under Section 138 of the Negotiable Instruments Act for dishonoring a cheque issued by the respondent. The trial court dismissed the complaint in default for want of prosecution.
Finding of the Court:
The court found that the trial court's dismissal of the complaint in default was not justified, as the complainant had been diligently pursuing the case and was represented through counsel on numerous dates.
Issues: The main issue was whether the trial court's dismissal of the complaint in default was justified due to the absence of the complainant and her counsel.
Ratio Decidendi: The court held that the trial court's discretion to dismiss the complaint for default resulting in the acquittal of the accused should be exercised with care and caution. It emphasized that the complainant's absence should be considered in light of the progress of the case and the necessity of her presence.
Final Decision: The court set aside the impugned order and restored the complaint to its original position, directing the appellant to appear before the trial court and proceed with the case. The court also warned that any subsequent default by the appellant would have legal consequences.
JUDGMENT
Vivek Singh Thakur, J. - This appeal has been preferred against impugned order dated 24.10.2018, passed by learned Chief Judicial Magistrate, Lahaul and Spiti at Kullu, H.P., in Complaint No.1217- 1/13, titled as Shri Ram Transport Finance Company Ltd. vs. Manju Devi, whereby complaint preferred by the appellant under Section 138 of the Negotiable Instruments Act (hereinafter referred to as the 'N.I. Act') has been dismissed in default for want of prosecution.
2. In present appeal, respondent has been duly served, but despite that she has not appeared in Court, which indicates that she is not interested to contest the appeal. Perusal of record also reveals that she was not appearing in the trial Court since February 2015. Arguments in the trial Court were heard on 18.02.2015 and thereafter learned counsel representing the respondent was also not turning up and trial Court could not ensure her presence despite issuing warrants against her.
3. Complaint by the appellant, under Section 138 of N.I. Act for dishonouring of cheque issued by respondent, was preferred in the year 2013. After pursuing and contesting the case by the parties, arguments in the complaint were concluded on 18.02.2015 and thereafter case was listed for 26.02.2015 for furnishing of the requisite bonds by the respondent under Section 437-A Cr.P.C., but on that day and dates subsequent thereto i.e. 26.03.2015, 02.04.2015, 30.06.2015 and 03.07.2015, neither respondent nor her counsel had appeared. However, in response to non-bailable warrants issued against the respondent vide order dated 03.07.2015 read with order dated 26.03.2015, respondent had appeared alongwith counsel in the trial Court on 14.08.2015 and whereupon case was listed for arguments on 10.12.2015, on which date, it was again adjourned for 23.02.2016 for arguments. On 23.02.2016, an application for exemption was filed on behalf of the respondent-accused through her counsel, which was allowed and case was adjourned for 04.04.2016.
4. Since 04.04.2016, again, neither respondent nor her counsel had appeared on 04.04.2016, 25.06.2016, 28.09.2016, 23.12.2016 and 27.03.2017 despite issuance of bailable and non-bailable warrants against the respondent.
5. On 27.03.2017 non-bailable warrants were issued against the respondent for 14.06.2017. However the said warrants were not executed and on 14.06.2017 case was transferred from the Court of learned Additional Chief Judicial Magistrate, Kullu to learned Chief Judicial Magistrate, Lahaul and Spiti at Kullu, who again issued non-bailable warrants against respondent, returnable on 02.12.2017.
6. Before next date of hearing i.e. 02.12.2017 case was taken on 27.11.2017 and on that day, date for returning non-bailable warrants issued against the respondent was modified from 02.12.2017 to 28.04.2018, but on that day also, non-bailable warrants were received back unexecuted and thereafter again non-bailable warrants were issued for 24.10.2018, but the same could not be issued for want of filing P.F. for the said purpose.
7. On 24.10.2018, impugned order of dismissing complaint has been passed by trial Court, which reads as under:-
| "24.10.2018:Present:-None for complainant. | |
|
| It is 12.25 PM. |
|
| Be awaited. |
| Called again: |
|
| Present:- None for the complainant. | |
| It is 2.30 pm. Be awaited. | |
| Called again at 4.00 P.M.: | |
| Present:- None | |
| Case repeatedly called since morning however, none appeared on behalf of complainant. The complainant has also not taken steps i.e. PF & CA for the service of the accused. The present complaint thus is dismissed in default for want of prosecution. File after completion be consigned to record room. | |
| Announced | |
| 24.10.2018" | |
8. In view of Section 143 of the NI Act, offence under Section 138 of the NI Act is to be tried summarily and accordingly, procedure for su
