M/S Ajay Traders v. M/S K. M. Peer Enterprises

HIGH COURT OF CHHATTISGARH, BILASPUR ACQA No. 699 of 2019 M/s Ajay Traders, Through Ajay Agrawal, S/o Late Shri Shambhulal Agrawal, Age 40 Years, R/o Police Station- Civil Lines, Shailendra Nagar, Tehsil and District- Raipur (C.G.) ---- Appellant

Versus

1.

M/s K.M. Peer Enterprises, Through its Proprietor Shri Mohd. Anwar.

2.

Shri Mohd. Anwar, Proprietor, M/s K.M. Peer Enterprises. Both having address at K.M. Peer Saheb Street, Kankapura, District- Ramanagaram, Karnataka, 562117.

---- Respondents ----------------------------------------------------------------------------------------------- For Appellant :

Mr. Sangeet Kushwaha, Advocate.

For Respondents :

None.

----------------------------------------------------------------------------------------------- Hon'ble Shri Justice Ram Prasanna Sharma Order On Board 11/11/2019 1.

This appeal is preferred under Section 378 (4) of the Code of Criminal Procedure, 1973 against order dated 27.11.2017 passed by Judicial Magistrate First Class, Raipur (C.G.) in Criminal Complaint Case No. 122/2016, whereby the said court dismissed the complaint filed under Section 138 of the Negotiable Instrument Act, 1881 for want of prosecution. 2.

It appears from the order-sheet of the said court that the case was fixed for serving notice to the respondent. The notice was not served and the case was fixed for appearance of the respondent. When the case was fixed for appearance of the respondent, presence of the petitioner/ complainant was not compulsory on that date and it was dismissed for want of prosecution.

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." 4.

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.

5.

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 and without providing opportunity to adduce evidence. 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. but that is not done in the present case, therefore, the order passed by the trial court is not sustainable. 6.

Accordingly, the order passed by the trial court is set aside allowing the appeal. The trial court is directed to proceed with the case after service of notice to the respondent and then proceed with the case to decide the issues between the parties on merit.

7.

The parties shall appear before the trial court on 7th January, 2020 and the trial court shall proceed further. Sd/- (Ram Prasanna Sharma) Judge Arun