Power Electricals v. Thanda Ram

NAFR HIGH COURT OF CHHATTISGARH, BILASPUR Criminal Misc. Petition No.427 of 2020 Power Electricals Proprietor Arun Kumar Awasthi S/o Late Shri Girish Kumar Awasthi Aged About 57 Years, Telipara, Bilaspur Thana - Civil Line Tahsil And District - Bilaspur Chhattisgarh. (Complainant) ---- Petitioner

Versus

1. Thanda Ram, Sarpanch Village Panchayat Revapar

2. Prabhudayal, Sachiv Village Panchayat Revapar. Add - Janpat Panchayat Sarangarh District - Raigarh Chhattisgarh. (Accused ) ---- Respondents ---------------------------------------------------------------------------------------- For the Petitioner : Shri Rakesh Dubey, Advocate For the Respondents : -- ---------------------------------------------------------------------------------------- Hon'ble Shri Justice Ram Prasanna Sharma Order On Board 12.02.2020 1.

Heard on application under Section 378(4) of CrPC for grant of leave to appeal.

2.

On due consideration, leave is granted.

3.

This petition has been preferred against Order dated 24.12.2019 passed by Judicial Magistrate First Class, Bilaspur (CG) in NIA Case Case No. 529/2018, filed under Section 138 of the Negotiable Instruments Act, 1881, wherein the said Court dismissed the complaint filed by the petitioner for want of prosecution.

4.

It appears from the order sheet of the trial Court that respondent No.1 Thanda Ram is not served and the case was

fixed for appearance of Thanda Ram and it was not fixed for appearance of the petitioner/complainant.

5.

Dismissal of the complaint case was not the only option before the trial Court. It should have adjourned the case for some other date as per the provisions of Section 256(1) CrMP. The trial Court should have proceeded to issue summon for service against the respondent, but that is not done and the case was dismissed even when the respondent is unserved. The trial Court should have made efforts for appearance of the respondent and thereafter should have proceeded to hear the case on merits after providing opportunity of adducing evidence to both sides. 6.

In the matter of Associated Cement Co. Ltd. Vs. Keshvanand reported in (1998) 1 SCC 687, Hon'ble the Apex Court held as under:- "18. Reading the Section in its entirety would reveal that two constraints are imposed on the court for exercising the power under the Section. First is, if the court thinks that in a situation it is proper to adjourn the hearing then the Magistrate shall not acquit the accused. Second is, when the Magistrate considers that personal attendance of the complainant is not necessary on that day the Magistrate has the power to dispense with his attendance and proceed with the case.

When the Court notices that the complainant is absent on a particular day the court must consider whether personal attendance of the complainant is essential on that day for progress of the case and also whether the situation does not justify the case being adjourned to another date due to any other reason. If the situation does not justify the case being adjourned the Court is free to dismiss the complaint and acquit the accused. But if the presence of the complainant on that day was quite unnecessary then resorting to the step of axing down the complaint may not be a proper exercise of the power envisaged in the section. The discretion must, therefore be exercised judicially and fairly without impairing the cause of administration of criminal justice."

Again, in the matter of Mohd. Azeem Vs. A. Venkatesh & another reported in (2002) 7 SCC 726, Hon'ble the Apex Court held that in a proceeding under Section 138 of the Negotiable Instruments Act, 1881, the single default in appearance on the part of the complainant, the dismissal of the complaint case is not proper, legal and justified.

7.

The procedure adopted by the trial Court is not proper. Accordingly, order passed by the trial Court is set aside by allowing the petition. The trial Court is directed to proceed with the case after appearance of respondent No.1 Thanda Ram and decide the issues between the parties after recording the evidence of both sides and after hearing both parties. 8.

The petitioner to appear before the trial Court on 25.03.2020 for further proceedings.

Sd/- (Ram Prasanna Sharma) JUDGE Bini