Ajay Agrawal v. Sunil Nara

NAFR HIGH COURT OF CHHATTISGARH, BILASPUR Acquittal Appeal No.552 of 2019 • Ajay Agrawal S/o Shri Govind Prasad Agrawal Aged About 32 Years R/o Mova, Through Mahalaxmi Traders, Mova, DistrictRaipur, Chhattisgarh. ---- Petitioner

Versus

• Sunil Nara S/o Shri Amar Nara R/o C/o Banshiwala Textiles, Shop No. J/71-72, Pandri Kapda Market, District- Raipur, Chhattisgarh.

---- Respondent ---------------------------------------------------------------------------------------- For the Appellant : Shri Devarshi Thakur, Advocate For the Respondent : None, though served.

---------------------------------------------------------------------------------------- Hon'ble Shri Justice Ram Prasanna Sharma Order On Board 05.11.2019.

1.

This appeal has been preferred against Order dated 30.4.2019 passed by Judicial Magistrate First Class, Raipur (CG) in Criminal Case No. 2150/2015 wherein the said Court dismissed the complaint filed by the appellant under Section 138 of the Negotiable Instruments Act, 1881, for want of prosecution. 2.

It appears from the order sheet that on 30.4.2019 the case was fixed for further proceedings. Therefore, presence of the appellant was not compulsory on that day.

3.

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.

4.

Dismissal of the complaint case was not the only option before the trial Court. It should have been adjourned for some other date as per the provisions of Section 256(1) CrMP. 5.

In view of this Court, the case should have been decided on merits and it should not have 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 by allowing the petition. The trial Court is directed to proceed with

the case on merits after providing opportunity of hearing to both sides and decide the case on merits after concluding it on merits. 7.

The parties to appear before the trial Court on 08.01.2020 for further proceedings.

Sd/- (Ram Prasanna Sharma) JUDGE Bini