Jayant Katankar v. N.K. Mitra

HIGH COURT OF CHHATTISGARH, BILASPUR CRMP No. 1597 of 2018 1.

Jayant Katankar, S/o Late T.S. Katankar, Aged About 46 Years.

2.

Vasudeo Jotwani, S/o K.C. Jotwani, Aged About 46 Years. Both R/o Sales Tax Colony, Khamhardeeh, Shankar Nagar, Raipur, Tahsil and District- Raipur (C.G.) ---- Petitioners

Versus

1.

N.K. Mitra, President, Sales Tax Department, Sahkari Grih Nirman Samiti, R/o Sales Tax Colony, Khamhardeeh, Shankar Nagar, Raipur, District- Raipur (C.G.) 2.

A.R. Thakur, Director, Sales Tax Department, Sahkari Grih Nirman Samiti, R/o Sales Tax Colony, Khamhardeeh, Shankar Nagar, Raipur, District- Raipur (C.G.) 3.

Arun Kumar Shukla, President, Sales Tax Department, Sahkari Grih Nirman Samiti, R/o Sales Tax Colony, Khamhardeeh, Shankar Nagar, Raipur, District-Raipur (C.G.) 4.

Bheem Rao Jamle, Director, Sales Tax Department, Sahkari Grih Nirman Samiti, R/o Sales Tax Colony, Khamhardeeh, Shankar Nagar, Raipur, District- Raipur (C.G.) R/o- H-64 Panchsheel Nagar, Raipur, District- Raipur (C.G.) 5.

Smt. Asmita Pandey, Director, Sales Tax Department, Sahkari Grih Nirman Samiti, R/o Sales Tax Colony, Khamhardeeh, Shankar Nagar, Raipur, District- Raipur (C.G.) R/o 176, Pension Bada, Raipur, District- Raipur (C.G.)---- Respondents ----------------------------------------------------------------------------------------------- For Petitioners :

Mr. Uttam Pandey, Advocate.

For Respondent No. 1 :

Mr. Anoop Majumdar, Advocate.

----------------------------------------------------------------------------------------------- Hon'ble Shri Justice Ram Prasanna Sharma Order On Board 23/01/2019 1.

Heard on I.A. No. 01/2018, application for condonation of delay in filing the petition.

2.

On due consideration and for the reasons mentioned in the application, the same is allowed and delay of 106 days in filing the petition is condoned.

3.

Also heard on application filed under Section 378 (4) of the Code of Criminal Procedure, 1973 for grant of leave to appeal.

4.

On due consideration, leave is granted.

5.

This petition is preferred under Section 378 (4) of the Code of Criminal Procedure, 1973 against order dated 18.01.2018 passed by Judicial Magistrate First Class, Raipur (C.G.) in Complaint Case No. 921/2013, whereby the said court dismissed the complaint filed under Sections 499 & 500 of IPC, 1860 for want of prosecution.

6.

It appears from the order-sheet of the said court that the case was fixed for stating of particular of offence to the respondent for that appearance of the appellant/ complainant was not compulsory and it 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."

8.

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 with respect to the petitioner/ complainant, the dismissal of the complaint case is not proper, legal and justified.

9.

In view of this Court, all the cases should decide on merit and not send the case to record room without deciding the issues between the parties. Dismissal of complaint was not the only option before the trial court. The trial court should have adjourned the case for some other dates as provided under Section 256 (1) of Cr.P.C. for stating particular of offence to the respondent. After stating particular of offence to the respondent, the case should have been fixed for evidence of both side, but that is not done in the present case, therefore, order passed by the trial court is not sustainable.

10.

Accordingly, order passed by the trial court is set aside allowing the petition. The trial court is directed to proceed with the case after stating particular of offence to the respondent and recording evidence of both side and after hearing both the parties, the trial court shall proceed with the case and decide the issue between the parties on merit.

11.

Both the parties shall appear before the trial court on 14th March, 2019 and the trial court shall proceed further. Sd/- (Ram Prasanna Sharma) Judge Arun