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2009 Supreme(Sikk) 2
High Court of Sikkim
Suresh Subba
Vs.
Udai Sarkar
Criminal Application No. 5 of 2008
Decided On : Apr 22, 2009
Advocate Appeared:
Dinesh Aggarwal, K.T.Bhutia,
A Magistrate should not mechanically dismiss a private complaint for a singular default of the complainant's appearance. The court must exercise judicial discretion, considering the gravity of the offence, previous diligence, and the stage of trial, favoring adjournment or exemption over acquittal to ensure the ends of justice.
Headnote:(A) Negotiable Instruments Act, 1881 - Section 138 - Code of Criminal Procedure, 1973 - Section 256 - Dismissal of complaint for non-appearance - Power of Magistrate to acquit on solitary default - Judicial discretion in trial proceedings - A court should not dismiss a complaint or acquit an accused mechanically for a single instance of non-appearance, especially where the complainant has previously demonstrated diligence and witnesses have been examined. Courts should consider whether the personal presence of the complainant is necessary or if an adjournment serves the goal of justice better than the terminal dismissal of the action. (Paras 16, 18, 19, 20)
(B) Appellate Review - Scope and ambit - Power to rectify unjust dismissal orders - Where sufficient cause for absence exists, a trial should proceed on its merits to prevent a total failure of justice. (Paras 18, 20)
Facts of the case:
A criminal complaint was initiated regarding the dishonour of a cheque. The complainant participated in the proceedings and examined all necessary witnesses. On a subsequent date fixed for filing a procedural reply, the complainant was absent for one day. The trial court dismissed the complaint for default and acquitted the accused. A subsequent petition for the restoration of the case was rejected by the trial court on the basis of a perceived lack of jurisdiction to restore a dismissed complaint.
Findings of Court:
The Appellate Court determined that a singular instance of non-appearance, particularly when the complainant had already closed the evidence phase, does not warrant the permanent dismissal of a claim involving a significant financial stake. The trial court failed to exercise its judicial discretion to adjourn or grant an exemption, a mechanism clearly provided in the governing procedural code to prevent mechanical disposal of matters.
Issues: Whether the dismissal of a criminal complaint for default of appearance during the trial for a single day represents a proper and judicial exercise of discretion by the trial court.
Ratio Decidendi: Dismissing a case for non-prosecution without regard to the case history, the nature of the offence, and the presence of sufficient cause for absence constitutes an improper exercise of judicial power. The court is obligated to prioritize the interests of justice, opting for trial on merits over terminal procedural dismissal.
Result: Appeal allowed; the impugned dismissal order is set aside and the complaint is restored for trial.
| Table of Content |
|---|
| 1. procedural context for hearing appeals in the absence of a respondent. (Para 1 , 2 , 3 , 4) |
| 2. factual background regarding cheque dishonor and subsequent dismissal of complaint for non-appearance. (Para 5 , 6 , 7 , 8 , 9 , 10 , 11 , 12 , 13) |
| 3. legal precedents arguing against mechanical dismissal for solitary complainant default. (Para 14 , 15 , 16 , 17) |
| 4. discretionary power under section 256 crpc disallows mechanical dismissal for single default of presence. (Para 18 , 19 , 20 , 21 , 22) |
JUDGMENT
(1) Heard Mr. K. T. Bhutia, learned Senior Counsel assisted by Mr. Dinesh Agarwal, learned Counsel representing the appellant herein.
(2) Although, the notice was duly sent on 11-4-2009 to be served upon the sole respondent by Registered Post with A/d, the respondent refused to accept the same and the same is duly reflected by the undelivered envelope returned back to the Registry indicating that the acceptance of the notice was refused on 16-4-2009. The above notice was sent to the respondent in compliance to the order dated 9-4-2009 by which the learned Counsel for the appellant was directed to take fresh steps to serve notice upon the sole respondent by registered Post with A/d.
(3) It further transpires from office note dated 4-4-2009 that the notice sent earlier upon the respondent by Registered Post with a/d on 23-3-2009 was also duly served and the A/d card received back on 4-4-2009.
(4) Hence, despite notice the respondent has preferred not to appear before this court. In view of the same, this Court proposes to proceed with the hearing of the instant appeal in absence of the respondent. This Criminal Appeal has been directed against an order dated 17-10-2008 passed by the learned Judicial Magistrate (First Class), East Sikkim at Gangtok (hereinafter referred to as 'the learned Magistrate')in Private Complaint Case No. 9 of 2008 whereby the respondent was acquitted from the charge under Section 138 of the Negotiable Instruments Act, 1881 (for short, 'the act').
(5) The brief facts of the case are that the appellant/ complainant lodged a complaint against the respondent being private complaint case No. 9 of 2008 with the Court of the learned Magistrate alleging that the complainant made over some money and took a policy of Tata A. I. G. bearing policy No. U520002782 through one J. N. Sarkar, the father of the present respondent. However, later on the appellant came to know that the said amount had not been invested by j. N. Sarkar, the father of the respondent. Then when the appellant approached J. N. Sarkar, the father of the respondent, they had arrived at an amicable settlement by the intervention of the respondent who accepted the liability of his father and agreed to undertake the liability of payment of the amount so taken by his father from the complainant and accordingly, executed a post dated cheque bearing Nd. 935604 dated 31-12-2007 for a sum of Rs. 1,60,000/- to be drawn on H. D. F. C. Bank, Siliguri, West bengal in favour of the appellant and the policy so given to the appellant was taken back by the respondent. When on 31-12-2007 the said cheque was presented for its encashment at State Bank of India, Gangtok branch, the same was dishonoured with the note "payment Stopped by Drawer". Immediately the appellant informed the respondent about such dishonour of the cheque and the respondent in turn requested the appellant to wait for two months and thereafter to deposit the same. Again when on 27-3-2008 the said cheque was presented before the State Bank of India, Gangtok branch, again the same was returned back unpaid with the reason "cheque Stop Instruct".
(6) Thereafter, again the appellant approached the respondent for redressal of his grievance by way of payment of his amount. Since the respondent refused to heed to any request from the appellant, a legal notice dated 1-4-2008 was served upon the respondent through his counsel making a demand for payment of the amount mentioned in the legal notic
