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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Vivek Singh Thakur, J.
Satvinder Singh Padda - Petitioner
Versus
Virender Kumar - Respondent
Cr. Appeal No. 246 of 2022
Decided On : 18-11-2022
Negotiable Instruments Act, 1881 - Section 138, 143 – Criminal Procedure Code, 1973 - Section 256, 326, 313 - Order in Default for Non-Appearance - Adjourn Hearing of Case - Appeal has been filed against impugned order in default for non-appearance of petitioner or his counsel when case was listed for service of respondent – Magistrate is supposed to exercise his discretion with care and caution clearly mentioning in order that there was no reason for him to think it proper to adjourn hearing of case to some other day. [Para 17]
Finding of the Court: As Mohd. Azeem versus A. Venkatesh and another, Supreme Court has considered dismissal of complaint on account of one singular default in appearance on part of complainant as a very strict and unjust attitude resulting in failure of justice - When complainant continued himself to be represented either through counsel or in person, observation of Magistrate that complainant was not interested in continuing with complaint is contrary to record - In normal circumstances, no complainant will be disinterested in pursuing his complaint without any reason - In given circumstances, it was a fit case for Magistrate to exercise her discretion to adjourn case for a subsequent date – Court is of opinion that Magistrate was not justified in dismissing complaint in default for absence of complainant coupled with failure of his counsel to attend case on that date, particularly, when complainant was pursuing his case and has led preliminary evidence in support of his complaint and was being represented through counsel on numerous dates fixed for service of respondent through bailable warrants - It is also a fact that date on which case has been dismissed in default was listed for service of respondent and on that day, personally presence of complainant was not necessary especially when he had already engaged counsel to represent him and said counsel was regularly appearing before Magistrate but except date of passing of impugned order - Accordingly, impugned order is set aside.
Result: Appeal allowed.
JUDGMENT :
(Vivek Singh Thakur, J.)
1. Present appeal has been filed against impugned order dated 13.12.2021 passed by Judicial Magistrate 1st Class, Kangra, District Kangra (hereinafter referred to as “Magistrate”) in Criminal Case No. 117-3/2019, whereby the complaint filed by appellant-Satvinder Singh Padda against respondent-Virender Kumar under Section 138 of the Negotiable Instruments Act (hereinafter referred to as “NI Act”), has been dismissed in default for non-appearance of petitioner or his counsel when the case was listed for service of respondent.
2. As the complaint filed by the appellant has been dismissed prior to the service of respondent Virender Kumar in the trial Court and impugned order has been passed in his absence, therefore, it has not been considered appropriate to issue the notice to respondent for the purpose of deciding present appeal. However, record of the trial Court has been summoned and perused.
3. The impugned order passed by the Magistrate is reproduced herein:-
Present: None for the complainant.
None appeared on behalf of the complainant, despite the fact that complainant was duly represented by a counsel on the previous dates of hearing. It is 11:00 A.M. Be called against after some respite.
Sd/-
(Shweta Narla)
Judicial Magistrate First Class,
Kangra, Distt. Kangra (HP)
13.12.2021
Present: As above.
Taken up again. Case called repeatedly since morning, but none appeared for complainant. It is 3:50 P.M. Remaining cause list is almost exhausted. Hence, the present complaint under Section 138 of the Negotiable Instrument Act is dismissed in default. File after due completion be consigned to record room.
Announced
13.12.2021
Sd/-
(Shweta Narula)
Judicial Magistrate Fist Class,
Kangra Distt. Kangra (HP)”
4. 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 summons case provided in Chapter XX of the Code of Criminal Procedure (hereinafter referred to as “CrPC”) is applicable during the trial initiated on filing a complaint under Section 138 of the NI Act. In this Chapter, Section 256 CrPC deals with a situation of non-appearance or death of complainant.
5. I am in agreement with finding returned by Allahabad High Court in case titled as Vinay Kumar versus State of U.P. & Anr., reported in 2007 Cri.L.J. 3161, and another judgment passed by co-ordinate Bench of this Court in case titled as N.K. Sharma versus M/s Accord Plantations Pvt. Ltd. & another, reported in 2008 (2) Latest HLJ 1249 with respect to applicability of Section 256 CrPC in a complaint filed under Section 138 of the NI Act.
6. I deem it proper to reproduce Section 256 CrPC herein:
(2) The provisions of sub-section (1) shall, so far as may be, apply also to cases where the non-appearance of the complainant is due to his death.”
7. Section 256 CrPC provides discretion to the Magistrate either to acquit the accused or to adjourn the case for some other day, if he thinks it proper. Proviso to this Section also empowers the Magistrate to dispense with the complainant from his personal attendance if it is found not necessary and to proceed with the case. Also, when the complainant is represented by a pleader or by the officer conducting the
Section 256 CrPC provides discretion to Magistrate either to acquit accused or to adjourn case for some other day, if he thinks it proper.
The importance of the complainant's personal attendance for the progress of the case and the discretion of the Magistrate to adjourn the hearing or dismiss the complaint.
Judicial discretion in case dismissal must be exercised judiciously, especially regarding the necessity of a complainant's presence.
Straightway dismissal of Section 138 complaint on single non-appearance unjustified; courts must exercise Section 256 Cr.P.C. discretion judicially, adjourning or dispensing attendance to ensure just....
A trial court must provide reasons for dismissing a complaint due to the complainant's absence, exercising discretion under Section 256 of the Cr.P.C. to avoid unjust hardship to the accused.
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