Mahesh Kumar Viswani v. Bhagwat Prasad Sahu

NAFR HIGH COURT OF CHHATTISGARH, BILASPUR CRMP No. 1201 of 2018 Mahesh Kumar Viswani, S/o - Shri Bedamal Viswani, aged about - 50 years, R/o - Pahadi Chowk, Gudhiyari, Raipur (C.G.) ---- Petitioner

Versus

Bhagwat Prasad Sahu, S/o - Not known, aged about - 46 years, R/o - Behind Jagrin Dabra, Near the house of Mohit Prasad, Ashok Nagar Gudhiyari, Raipur (C.G.) ---- Respondent ------------------------------------------------------------------------------------------------- For the petitioner :

Shri Y.C. Sharma and Shri Ajay Kumar Chandra, Advocates.

For Respondent :

None ------------------------------------------------------------------------------------------------- Hon'ble Shri Justice Ram Prasanna Sharma Order on Board 19.03.2019.

1.

Heard on I.A No.1/2018, application for condonation of delay in filing instant petition.

2.

On due consideration, the application is allowed and the delay of 16 days in filing the petition is hereby condoned. 3.

The petition is preferred against Order dated 13th February, 2018 passed by Judicial Magistrate First Class, Raipur (CG), in Criminal Case No.3273/2016 wherein the said Court acquitted the respondent for the charge under Section 138 of the Negotiable Instruments Act, 1881 as the case was dismissed for want of prosecution in single default.

4.

It appears from the ordersheet of the Trial Court that the case was fixed for recoding evidence of the respondent/accused and presence of the petitioner/complainant was not compulsory. 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.

5.

Dismissal of the complaint case was not the only option before the trial Court. The trial Court could have adjourned the case to some other date as per the provisions of Section 256(1) CrPC. The court should have proceeded to decide the case on merits after providing opportunity to adduce evidence to both the sides and it should not have been sent to record room without deciding issues between the parties and without providing opportunity to adduce evidence. But that is not done in the present case, therefore, the order passed by the trial Court is not sustainable.

6.

Accordingly, order passed by the trial Court is set aside allowing the petition. The trial Court is directed to proceed with the case after providing opportunity to both side to adduce evidence. 7.

The petitioner/complainant is directed to appear before the trial Court on 02.5.2019 for further proceedings.

Sd/- (Ram Prasanna Sharma) JUDGE N.Mohle