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2018 Supreme(P&H) 1745
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
ARVIND SINGH SANGWAN, J.
Sham Lal Duggal - Appellant
Versus
State of Punjab and another - Respondents
CRM-A-1149-MA-2014 (O&M)
Decided on : 21-05-2018
Advocate Appeared:
For the Appellant :Mr. Dhiraj Chawla, Advocate
For the Respondent:Ms. Samina Dhir, Mr. P.S.Hundal, Advocate
Non-appearance of the complainant and his counsel due to a bona fide mistake can be considered, and compensation to the accused may be a relevant factor in setting aside the dismissal of a complaint.
Headnote:
Negotiable Instruments Act - Setting aside order of dismissal - Non-appearance of complainant - Appeal allowed based on bona fide mistake of non-appearance and compensation to accused
Fact of the Case:
The appellant filed a complaint under Section 138 of the Negotiable Instruments Act due to dishonoring of two cheques. The trial Court dismissed the complaint due to non-appearance of the appellant and his counsel, leading to subsequent dismissal of restoration application and revision petition.
Finding of the Court:
The court found merit in the appeal, considering the appellant's bona fide mistake in noting the wrong date for appearance and the compensation already paid to the accused.
Issues: The issues involved non-appearance of the complainant and his counsel, dismissal of the complaint, restoration application, and maintainability of the revision petition.
Ratio Decidendi: The court allowed the appeal based on the judgment in Purushotam Mantri's case, which held that non-suiting the petitioner for non-appearance on one date would be too harsh.
Final Decision: The appeal was allowed, and the trial Court was directed to dispose of the complaint within six months.
ARVIND SINGH SANGWAN, J.
CRM-A-1149-MA-2014
1. Leave to appeal is granted. Registry is directed to number as main appeal.
Main appeal.
2. Prayer in this appeal is for setting aside the order dated 16.07.2013 passed by the trial Court in criminal complaint No.110 dated 25.04.2011 under Section 138 of the Negotiable Instruments Act, 1881, vide which, the complaint filed by the appellant was dismissed on account of non-appearance of the complainant.
3. Counsel for the appellant submits that the appellant had filed a complaint under Section 138 of the Negotiable Instruments Act on account of dishonouring of two cheques bearing serial No.550675 and 664280 both dated 29.03.2011 drawn on Punjab National Bank, Banga Road, Phagwara in the denomination of Rs.35,00,000/- (Rupees thirty five lacs only) and Rs.8,00,000/- (Rupees eight lacs only). It is further submitted by the petitioner that during the pendency of the complaint, he was regularly appearing before the trial Court and the trial Court had issued summoning order on 16.07.2011 (Annexure A-2) and in pursuance thereof, the respondent-accused had already put in appearance.
4. Counsel for the appellant has further submitted that the case was listed on 14.05.2013 and inadvertently, the counsel appearing for the appellant/complainant has noted the next date of hearing as 26.07.2013, whereas, the actual date was 16.07.2013 and on 16.07.2013, vide impugned order, the trial Court has dismissed the complaint on account of nonappearance of the appellant/complainant as well as his counsel. Counsel for the appellant has further submitted that thereafter, he has moved an application for restoration of the complaint, however, the same was also dismissed, on the ground of non-maintainability vide order dated 11.09.2013 (Annexure P-5). Thereafter, the petitioner preferred a revision petition before the Sessions Judge, Kapurthala and the same was also dismissed vide order dated 18.03.2014 holding that the revision is not maintainable as the order passed by the trial Court, dismissing the complaint account to discharge and therefore, the said order is an appealable order.
5. The present appeal has been filed along with an application for condoning of delay of 249 days. The delay was condoned on 12.12.2016, on payment of cost of Rs.5,000/-to respondents No.1 to 3 and later on, another amount of Rs.5,000/- was imposed as a cost for delaying in depositing the previous cost. The parties are ad idem that the amount of costs of Rs.10,000/- has already been paid to the respondents.
6. Counsel for the appellant has relied upon the judgment in Mohd. Azeem V. A. Venkatesh, (2002) 7 SCC 726 to submit that the Hon'ble Supreme Court has held that dismissal of the complaint under Section 138 of the Negotiable Instruments Act for absence of complainant on a single occasion, is not justified.
7. Similar view has been taken by this Court in 2009 (1) RCR (Criminal) 442 Purushotam Mantri Vs. Vinod Tandon alias Hari Nath Tandon, wherein, it has been held that it would be too harsh on the petitioner to non-suit him merely for his non-appearance on one date.
8. In reply, learned State counsel has opposed the prayer of the appellant/complainant on the ground that no explanation has been given why the petitioner has not appeared before the trial Court as in the application it is only stated that the counsel for the appellant has noted a wrong date.
9. In reply, counsel for the appellant has relied upon the photocopy of the Daily Diary maintained by counsel for the appellant/complainant in the trial Court (Annexure A-3), wherein, with reference to the instant complaint, in the Daily Diary of 14.05.2013, the next date is entered as 26.07.2013 and there is no cutting on his entry.
10. After hearing counsel for the parties, I find merit in the present appeal.
11. Admittedly, the complainant has defaulted only on one date when he or his counsel failed to appear before the trial court on account of noting a wrong date. Counsel f
