Girish Gangadharji Agrawal vs State Of Maharashtra & Ors.

Heard the learned Counsel appearing for the parties.

This is an appeal directed against the order passed below Exhibit 1 on 28.02.2003, dismissing the Complaint of the appellant under Section 204(4) of the Code of Criminal Procedure (‘CrPC’), 1973 for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short ‘the NI Act’) on the ground that the appellant has not paid the process fee. The learned counsel for the appellant submits that he had filed a complaint in the year 2001 for the offence punishable under Section 138 of the NI Act, however on a very technical ground that the appellant did not pay the process fee, his complaint was dismissed. However he submits that he had paid the process fee, when the complaint was instituted, as it is reflected in the Roznama dated 28.12.2001. He submits that initially the matter was placed before Court No.9, however, subsequently, how it got placed before Court No.4, is not clear from the entire records and proceedings. To ascertain this fact, this Court has already called the report from the Court below while dealing with the application for condonation of delay wherein in order dated 13.01.2010 this Court has observed that “Perusal of the report shows that there is no endorsement on case papers about the transfer of case to the Court of 4^th JMFC from the file of 9^th JMFC Akola. Daily Board also did not reveals the case number on some dates. Therefore, while dealing with the application for condonation of delay, this Court has considered the report of Chief Judicial Magistrate and found no endorsement on the transfer of the case from Court No.9 to Court No.4.

Learned Counsel for the appellant further submits that the advocate representing the appellant, at the relevant time suffered an acid attack between the year 2001 and 2002 and ultimately died in the year 2005. The impugned order came to be passed only on the ground that the process fee has not been paid by the appellant/ original complainant even after issuance of the process against the respondents. The Trial Court ought not to have taken such a hyper technical view which has caused great prejudice to the appellant despite the fact that process fee was already paid. Therefore, he submits that the Trial Court has grossly committed an error while dismissing the complaint of the appellant.

On the other hand, the learned Counsel appearing for the respondent no.4 vehemently opposes the appeal on the ground that in spite of giving several opportunities to the appellant, he has not taken steps for the payment of the process fee. Even if it is presumed that the advocate suffered with an acid attack, it was for the complainant to attend the day to day dates of the Trial Court and therefore, he cannot blame the advocate. He further submits that the case was instituted in the year 2001, whereas the dismissal order was passed on 28.02.2003, for 2 years the appellant has not turned up before the Trial Court. Under such circumstances, in spite of several opportunities, as the appellant failed to pay the process fee, the Trial Court had rightly passed the impugned order.

I have considered the rival submissions. At the outset, it is painful to mention that the matter is pending since 2011 before this Court involving a very small issue of non-payment of process fee. Even after a lapse of 15 years, the parties are still waiting for justice. Be that as it may, after going through the impugned order, it appears that the Complaint was dismissed only on the ground that the appellant has failed to pay the process fee in spite of issuance of process. However there is no record as to how the case was transferred from Court no.9 to Court no.4. Under such circumstances, it appears that the appellant was not able to keep track of the matter. So also, the Trial Court did not consider that process fee has already been paid, which could be gathered from the Roznama dated 28.12.2001, which is reproduced as under :

Even assuming that the fee was not paid, sufficient opportunity ought to have been given to the Complainant, however the Trial Court has dismissed the complaint on a very technical ground. It is a settled position of law that the principles of natural justice are required to be followed by giving an opportunity to the complainant to prosecute the complaint on merits as well as the opportunity is to be given to the accused to contest the complaint on merits. The principles of natural justice are the cardinal principle of law and backbone of judicial process.[Shri Shaikh Akbar Talab vs. Shri A.G. Pushpakaran and anr. 2018 ALL MR (Cri.) 1208]. The Trial Court ought not to have taken such a harsh and hyper technical view.

Considering the above facts and circumstances, I am inclined to set aside the impugned order. Hence the following order :

Rule is made absolute in above terms.