Rajkumar Bafna v. Khiyaldas Jathani @ Pappu

NAFR HIGH COURT OF CHHATTISGARH, BILASPUR CRMP No. 2633 of 2018 Rajkumar Bafna, S/o - Shri Trilokchand Bafna, Aged about - 52 years, R/o - C-504, Poum Residency, Rajendra Nagar, Tahsil & District- Raipur, (C.G.) ---- Petitioner

Versus

Khiyaldas Jathani @ Pappu, S/o - Ramchandra Jethani, R/o C104, Poum Residency Rajendra Nagar, Raipur, Tahsil & DistrictRaipur, (C.G.) ---- Respondent ------------------------------------------------------------------------------------------------- For the petitioner :

Mr. Yogesh Pandey, Advocate.

For the respondent :

None ------------------------------------------------------------------------------------------------- Hon'ble Shri Justice Ram Prasanna Sharma Order on Board 06.03.2019.

1.

Heard on I.A No.1/2018, application for condonation of delay in filing instant petition.

2.

On due consideration, the application is allowed and the delay of 135 days in filing the petition is hereby condoned. 3.

Also heard on application under Section 378(4) of CrMP for grant of leave to appeal.

4.

On due consideration, leave is granted.

5.

This petition is preferred against the order dated 21st May, 2018 passed by Judicial Magistrate First Class, Raipur (CG), in Complaint Case No.858/2017 wherein the said Court acquitted the respondent for the charge under Section 138 of the Negotiable Instruments Act, 1881 (for short, "the Act") as the case was dismissed for want of prosecution.

6.

It appears from the ordersheet of the trial court that the case was fixed on the said date for serving sommons or bailable warrant was issued to the respondent but same was not served. It appears from the ordersheet that earlier process fee was paid for issuing summon to the respondent but summon or bailable warrant was not served to the respondent on said date. The case was fixed for appearance of the respondent but the trial court dismissed the compaint for nonappearance of the complainant /appellant. 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."

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 the 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.

8.

Dismissal of the complaint case was not the only option before the trial Court. The trial Court could have adjourned the case to some other date as per the provisions of Section 256(1) CrPC. The court should have proceeded to decide the case on merits after providing opportunity to adduce evidence to both the sides 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.

9.

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 particulars to the respondent/accused and decide the issues after providing opportunity to both side to adduce evidence. 10.

Both the parties are directed to appear before the trial Court on 24th April, 2019 for further proceedings.

Sd/- (Ram Prasanna Sharma) JUDGE N.Mohle