Shri Arshdeep Buildcon Private Limited v. Ramgopal Kashyap
NAFR HIGH COURT OF CHHATTISGARH , BILASPUR Criminal Misc. Petition No.155 of 2019 • Shri Arshdeep Buildcon Private Limited Through Its Proprietor Raspal Singh S/o Late Shri Surta Singh, Aged About 42 Years, R/o House No. 18, Rama Life City, Opposite Jain International School, Sakri Road Bilaspur, Police Station- Chakarbhata, District- Bilaspur, Chhattisgarh, Present Address- Near Balani Nursing Home, Subham Vihar, Bilaspur, Police Station- Civil Line Bilaspur, District- Bilaspur, Chhattisgarh.
---- Petitioner
Versus
• Ramgopal Kashyap S/o Shri Ganeshram Kashyap R/o Kududand Shivmarg, Near Milan Chowk, Bilaspur, DistrictBilaspur, Chhattisgarh. ---- Respondent ------------------------------------------------------------------------------------------- For the Petitioner : Shri Rishi Rahul Soni, Advocate For the Respondent : Shri Arvind Dubey, Advocate ------------------------------------------------------------------------------------------- Hon'ble Shri Justice Ram Prasanna Sharma Order On Board 09.4.2019 1.
Heard on IA No.01/2019 for condonation of delay in filing the instant petition.
2.
On due consideration, the application is allowed and the delay of 174 days in filing the petitioner is hereby condoned. 3.
Also heard on application for grant of leave to appeal under Section 378(4) of CrPC.
4.
This petition has been preferred against Order dated 10.4.2018 passed by Judicial Magistrate First Class, Bilaspur (CG) in Criminal Complaint Case No.111/2017 wherein the complaint filed by the petitioner under Section 138 of the Negotiable Instruments Act, 1881 has been dismissed for want of prosecution.
5.
It appears from the order sheet of the trial Court that the case was fixed for recording the evidence of the petitioner/complainant and it was dismissed for single default. 6.
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."
7.
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.
8.
Dismissal of the complaint was not the only option before the trial Court. It could have adjourned the case to some other date as per the provisions of Section 256(1) CrPC. The case
should have been decided on merits after recording the evidence of the both sides, but that is not done and the record was sent to record room without deciding issues between the parties and without providing opportunity to adduce evidence. 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 providing opportunity to adduce evidence to both sides.
10.
The complainant/petitioner to appear before the trial Court on 18.6.2019.
Sd/- (Ram Prasanna Sharma) JUDGE Bini