M/S Nanofil Technology Pvt. Ltd. v. M/S Global Packaging

NAFR HIGH COURT OF CHHATTISGARH, BILASPUR ACQA No. 109 of 2017 • M/s Nanofil Technology Pvt. Ltd. Through Rajesh Dubey (General Manager Legal) Office At Pipalgaon Road, Mahuakheda Ganj Tehsil Kashipur District Udhamsingh Nagar.

--- Appellant

Versus

1. M/s Global Packaging Through Semaay Hariramani & Dilip Hariramani (Partners) Office At Village Amera, Tehsil Palari District Balodabazar, Chhattisgarh.

2. Semaay Hariramani, Partner M/s Global Packaging Office At Village Amera, Tehsil Palari District Balodabazar, Chhattisgarh

3. Dilip Hariramani, Partner M/s Global Packaging Office At Village Amera, Tehsil Palari District Balodabazar, Chhattisgarh --- Respondents For the Appellant :

Mr. Maneesh Sharma and Mr.

Pragalbha Sharma, Advocate For the Respondents :

Mr. Adil Minhaj, Advocate Hon'ble Shri Justice Goutam Bhaduri Judgment/Order on Board 23.10.2017 1.

The instant appeal is against the order dated 03.04.2017 passed by the learned Chief Judicial Magistrate in Criminal Case No. 500/2015 (M/s. Nanofil Technology Pvt. Ltd., Vs. M/s. Global Packaging and others) wherein the the complaint filed by the appellant u/s 138 of the Negotiable Instruments Act was dismissed for want of appearance and consequently the accused/respondents were acquitted of the charges. 2.

Learned counsel for the appellant would submit that the complaint u/s 138 of the N.I.Act was filed in the year 2015

and thereafter, the complainant was appearing along-with advocate, however, in the meanwhile, since certain interlocutory orders was challenged before the Additional Sessions Judge, the records were requisitioned by the 3rd ASJ and thereafter when the records came back to the trial Court, the complainant could not make his presence and consequently it resulted into dismissal. Learned counsel for the appellant, therefore, prays that the said criminal case may be restored to its original number and an opportunity may be afforded to the Appellant to prosecute his complaint so as to facilitate the adjudication on merits of the case. 3.

Per contra, learned counsel for the respondents vehemently opposes the same.

4.

During the course of arguments, the certified copies of the order sheets were placed before this Court.

5.

A perusal of the certified copies of the order sheets would show that the complaint was filed on 01.05.2015 and thereafter the same was registered. The respondents/ accused after service of summons entered appearance on 29.02.2016 and they were granted benefit of bail. Subsequently, the complainant and his advocate appeared on different dates and the order sheet dated 07.12.2016 would show that certain criminal revision was filed before the Addl. Sessions Judge where the file was requisitioned. The records came back and thereafter a date was given on 08.03.2017 and the complainant was represented through his counsel and thereafter on 03.04.2017, the case was dismissed for want of prosecution as the complainant failed to appear.

6.

As has been laid down by the Supreme Court in case of Mohd. Azeem Vs. A. Venkatesh and another (2002) 7 SCC 726, the dismissal on single default of appearance is a very strict and unjust attitude resulting in failure of justice. In the instant case, the order sheets would show that on different dates, the complainant appeared and during the pendency of criminal case, at certain point of time, a revision was filed before the ASJ in which the records were requisitioned and thereafter when the file came back to the trial Court, the non-appearance was caused, therefore, it shows that the dismissal order was passed due to single nonappearance on 03.04.2017. It appears that the original record of the complaint case was pending before the Court of Addl. Sessions Judge for adjudication of revision and after disposal of the revision, the record came back and at the same time when the complainant remained absent for single day before the trial Court, the complaint was dismissed. The dismissal is not on merits.

7. As has been laid down in case of Mohd. Azeem Vs. A Venkatesh (supra), the dismissal on single default of appearance amounts to not only very strict attitude but also unjust resulting in failure of justice Therefore, in the facts and circumstances of the case if the dismissal of complaint is allowed to continue it would lead to irreparable loss and may cause failure of justice.

8. Taking into consideration such facts that the complaint was already registered and no enormous delay appears to have been caused and in view of the law laid down by the Supreme Court in case of Mohd. Azeem Vs. A Venkatesh

(supra), the order of dismissal of complaint passed on 03.04.2017 is set aside and the Criminal Case No.500/2015 is restored to its original number. The case is remitted back to the trial Court to adjudicate the same from the stage of dismissal.

9.

The parties shall appeal before the trial Court on 10th November, 2017.

Sd/- GOUTAM BHADURI JUDGE R a o