Sambhav Agro Industries v. Durgesh K. Umarvaishya
NAFR HIGH COURT OF CHHATTISGARH, BILASPUR CRMP No. 2146 of 2019 • Sambhav Agro Industries, a registered partnership firm, partner Manoj Jain, through authorized signatory Rahul Jain, Aged about 38 years, S/o Shri Kanti Lal Jain, Having Office at House No. 5, 1st Floor, Opposite Shri Ramnath Bheemsen Sabha Bhawan, Samta Colony, Raipur (C.G.) ---- Petitioner
Versus
• Durgesh K. Umarvaishya, S/o Shri Banwari Lal Umarvaishya, proprietor Krishi Meet, Address Block No. C, Flat No. 508, 5th Floor, Palace Line, The Royal Green Apart, District- Balangir, Odisha.
---- Respondent ------------------------------------------------------------------------------------------- For Petitioner : Shri Ashish Surana, Advocate.
For Respondent : None though served.
----------------------------------------------------------------------------------------------- Hon'ble Shri Justice Ram Prasanna Sharma Order on Board 27/01/2020
1. Heard on application for grant of leave to appeal filed under Section 378(4) of the Code of Criminal Procedure, 1973.
2. This petition is preferred against the order dated 31st July, 2019 passed by Judicial Magistrate First Class, Raipur (C.G.) in Criminal Case No. 2847/2018 filed under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the Act, 1881') wherein the said Court dismissed the complaint filed by the petitioner for want of prosecution.
3. It appears from the order sheets of the trial Court that earlier on 15.05.2019 non-bailable warrant was issued against the respondent declaring him abscond, thereafter, it does not reveal
from the order-sheet of the trial Court after restitution of the case the appellant was informed.
4. Dismissal of complaint was not the only option before the trial Court. The trial Court should have adjourned the case for some other date as per the provisions of Section 256(1) of the Cr.P.C. The trial Court after restitution of the case should have proceeded to decide the case on merit between the parties, but that is not done in the present case and without deciding the issues between the parties, the record was sent to record room.
5. 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.
exercised judicially and fairly without impairing the cause of administration of criminal justice." 6.
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.
7. Accordingly, the instant appeal is allowed and the order passed by the trial Court is hereby set aside. Now the case is remanded back to the trial Court for deciding the case afresh after hearing the parties. The trial Court is directed to decide the case on merit after providing opportunity of hearing for adducing evidence to both sides.
8.
The appellant shall remain present before the trial Court for further proceeding on 4th March, 2020.
Sd/- (Ram Prasanna Sharma) Judge Vasant