Raigarh Automobiles Pvt. Ltd. v. Mangatram

NAFR HIGH COURT OF CHHATTISGARH, BILASPUR CRMP No. 1381 of 2019 Raigarh Automobiles Pvt. Ltd. Jagatpur, Raigarh, Through: Shri Chandrabhan Singh Thakur, S/o- Shri Surendra Singh Thakur, Authorised Representative Raigarh Automobiles Pvt. Ltd. Jagatpur, Police Station City Kotwali, Raigarh, Tahsil and District- Raigarh (C.G.) --- Petitioner

Versus

Mangatram, S/o- Lokpal Saye, R/o- Village Bertapali, Post Gersa, Police Station and Tahsil- Dharamjaigarh, District- Raigarh (C.G.) --- Respondent ------------------------------------------------------------------------------------------------ For petitioner :

Mr. Mukesh Sharma, Advocate For respondent :

Mr. Deepak Kumar Singh, Advocate ------------------------------------------------------------------------------------------------- Hon'ble Shri Justice Ram Prasanna Sharma Order on Board 05.11.2019.

1.

Heard on I.A. No.01/2019, application for condonation of delay in filing the instant petition.

2.

On due consideration, application is allowed and the delay of 104 days is hereby condoned.

3.

Also heard on application under Section 378(4) of CrMP for grant of leave to appeal.

4.

On due consideration, leave is granted.

5.

This petition is preferred against the order dated 5th October, 2018, passed by Judicial Magistrate First Class, Raigarh (C.G.) in Criminal Complaint Case No. 162/2018 filed under Section 138 of Indian Negotiable Instruments Act, 1881, wherein, the said Court dismissed the case for want of prosecution.

6.

It appears from the record of the Trial Court that the case was fixed for recording of evidence of the complainant side but no one appeared at that time, therefore, the case was dismissed for want of prosecution. 7.

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 the 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.

8.

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) of CrPC. The Trial Court should have proceeded the case to decide the issues between the parties on merit but that is not done in the present case and record was sent to record room without deciding the issues between the parties.

9.

Accordingly, order passed by the Trial Court is not proper and same is hereby set aside, allowing the petition. Trial Court is directed to proceed with the case on merit and after providing opportunity to both sides to adduce the evidence, decide the case on merit. 10.

Both parties shall appear before the Trial Court on 8th January, 2020 for further proceedings.

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