Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2024 Supreme(HP) 475

2024:HHC:6925
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
RAKESH KAINTHLA, J.
Raman Kumar - Appellant
Versus
Puran Chand - Respondent
Cr. Appeal No.293 of 2024
Decided on : 13-08-2024
Advocates Appeared :
For the Appellant : Mr. H.S.Rangra, Advocate
For the Respondent : Mr. Rajesh Kumar Bhardwaj, Advocate

Petitioner Advocates:Hoshiyar Singh Rangra ,Respondent Advocate: NEMO Vinod Kumar Soni Rajesh Kumar Bhardwaj

The dismissal of a complaint under Section 256 of CrPC is improper if the complainant's presence is not necessary for the proceeding, particularly when prosecution evidence has been led.

Headnote:(A) Criminal Procedure Code, 1973 - Section 256 - Negotiable Instruments Act, 1881 - Section 138 - Dismissal of complaint for want of prosecution - Trial Court dismissed the complaint after appellant's failure to appear; appellant claimed non-appearance was due to counsel’s miscommunication. (Paras 1-3, 11-15)

(B) Dismissal of complaint - The Court emphasizes that personal attendance of the complainant may not be necessary if the prosecution's evidence has been led; dismissal is not justified if the case can proceed without the complainant's presence. (Paras 12-14)

(C) Error in judgment - The Court found that the order dismissing the complaint was an error as the claim to summon did not require the complainant's presence. (Paras 15-17)

Facts of the case:
The appellant filed a complaint under Section 138, and the Court dismissed it due to the appellant's absence. Appellant contended that this was due to a scheduling error by counsel.

Findings of Court:
The learned Trial Court erred in dismissing the complaint; the matter could have proceeded without the complainant's presence as notice of accusation to the accused was to be put forth.

Issues: The primary issues include the justification behind the dismissal of the complaint for non-appearance and whether the complainant's presence was required at all.

Ratio Decidendi: The Court ruled that the absence of the complainant did not warrant dismissal of the complaint, especially when the matter was at a procedural stage where his presence was not essential, reiterating the requirements of Section 256.

Result: Appeal allowed; order of the Trial Court set aside and complaint restored.

JUDGMENT :

Rakesh Kainthla, J.

1. The present appeal is directed against the order dated 03.07.2023, passed by learned Additional Chief Judicial Magistrate Court No.1 Mandi, District Mandi, H.P. (learned Trial Court), vide which the complaint filed by the appellant (complainant before the learned Trial Court) was dismissed under Section 256 of CrPC. (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience).

2. Briefly stated, the facts giving rise to the present appeal are that the complainant filed a complaint before the learned Trial Court against the accused for the commission of an offence punishable under Section 138 of the Negotiable Instruments Act. The Court found sufficient reasons to summon the accused. The matter was listed on 03.07.2023 when the accused was present but the complainant was not present despite having been served by way of notice. Hence, the learned Trial Court dismissed the complaint for want of prosecution.

3. Being aggrieved from the order passed by the learned Trial Court, the complainant has filed the present appeal asserting that he used to appear before the Court on each and every date of hearing. The complaint got transferred from one Court to another. His counsel had noted down the date of hearing as 22.08.2023 instead of 03.07.2023 and the complainant could not appear before the Court due to the mistake of his counsel. The non- appearance of the complainant was neither intentional nor deliberate but due to reasons which were beyond his control. Hence, it was prayed that the present appeal be allowed and the order passed by the learned Trial Court be set aside.

4. I have heard Mr. H.S.Rangra, learned counsel for the appellant/complainant and Mr. Rajesh Kumar Bhardwaj, learned counsel for the respondent/accused.

5. Mr. H.S.Rangra, learned counsel for the appellant/complainant submitted that the non-appearance of the complainant before the Court was neither intentional nor deliberate but due to an error in noting the date by the learned counsel. The complaint was at the initial stage and should not have been dismissed at its threshold. Therefore, he prayed that the present appeal be allowed and the order passed by the learned Trial Court be set aside.

6. Mr Rajesh Kumar Bhardwaj, learned counsel for the respondent/accused submitted that a false plea has been taken before this Court because a notice was served upon the complainant but he failed to appear on the date fixed. There was no question of noting the wrong date of hearing because the matter was not adjourned in the presence of the learned counsel for the complainant. Hence, he prayed that the appeal be dismissed.

7. I have given considerable thought to the submissions made at the bar and have gone through the records carefully.

8. At the outset, it is to be noticed that the plea taken by the complainant is false. A perusal of the order sheet shows that the matter was listed on 08.12.2022, on which date the Court ordered the summoning of the complainant for 05.04.2023. The notice was not received back on 05.04.2023 and a fresh notice was ordered to be issued for 22.06.2023. Again, the notice was not received back on 22.06.2023 and a fresh notice was ordered to be issued for 03.07.2023. This time, the notice was duly served upon the complainant for his appearance before the Court on 03.07.2023. The complainant failed to appear in the Court on 03.07.2023 and the Court dismissed the complaint for want of prosecution.

9. The order sheets maintained by the learned Trial Court do not show that the matter was listed for 03.7.2023 in the presence of the learned counsel for the complainant. Hence, the plea taken by the complainant that the learned counsel had noted a wrong date in his diary, due to which he could not appear before the Court, is incorrect. The Court had served the notice upon the complainant and he has not assigned any reasonable cause for non-appearance, before the Cour