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Judgment
M.D. Shah, J.—By this appeal, the Appellant herein - original complainant challenges the order dated 16.11.2009 passed by the learned Chief Judicial Magistrate, Godhra in Criminal Case No. 28 of 2004.
The Appellant herein is original complainant and Respondent No. 1 is original accused. Original accused is doing business of selling auto rickshaw. The Appellant wanted to purchase auto rickshaw with the help of Bank. Therefore, he prepared loan papers for bank loan and presented in the bank. The Appellant had already deposited Rs. 60,000/-to the Respondent original accused and remaining amount of Rs. 90,000/-was deposited by way of bank draft in favour of the Respondent accused. Despite the payment, Respondent accused had not given delivery of the auto rickshaw. Thereafter, Appellant as well as bank authorities demanded money back from the Respondent original accused. Therefore, Respondent accused gave cheque of Rs. 45,000/-dated 15.06.2003. When said cheque was presented by the Appellant before the Bank, said cheque was dishonoured with endorsement ''account closed on 26.08.2003". Thereafter, Appellant gave demand notice to the Respondent accused through his advocate on 12.12.2003 which was served on 13.12.2003. Inspite of receiving said notice, Respondent accused did not pay the money, therefore, Appellant filed Criminal Case No. 28 of 2004 before the learned Chief Judicial Magistrate, Godhra against Respondent accused for the offence u/s 138 of the Negotiable Instrument Act.
After recording statement of the complainant and after verifying the complaint, the Court passed order to register the complaint and also passed order to issue process against Respondent original accused. The matter was kept for recording of evidence of original complainant on 16.11.2009. When the matter was called out, original complainant nor his advocate remained present upto 12.50 p.m., therefore, the learned Trial Court quashed the complaint and original accused was acquitted. Said order is challenged by the Appellant herein - original complainant by filing this appeal.
Though notice is served to the Respondent original accused Respondent is not present in person nor is represented by any advocate.
It is submitted by Ms. Kotecha, learned advocate for the Appellant that as talks of settlement was going on between the original complainant and original accused, he could not remain present in the morning. It is also submitted that original complainant went to bring original cheque. It is submitted that after recess hours, original complainant remained present before the Court and submitted application as original accused was acquitted by the Court. Said application was rejected. She further submitted that order passed by the learned Trial Court is illegal and perverse and against principles of natural justice and is required to be quashed and set aside. She also invited attention of the Court to the original record of case.
It transpires from the record that complainant remained present at about 15.35 hours on 16.11.2009 and submitted application. When the matter is fixed for hearing, then it is required by the Court to wait for some reasonable time and at first instance when the matter is called and if complainant is not present, complaint should not be dismissed.
In the case of Continental Papers Ltd. Vs. Darshan Print Pack (P) Ltd., Delhi High Court in para 2 has observed as under:
The Court hours for the sessions Courts and Courts of Metropolitan Magistrates are from 10.00 a.m. to 4.00 p.m. Complaint was dismissed at 10.30 a.m. which are early hours of the day. The High Court has been issuing instructions from time to time to the subordinate Courts that the cases should not be dismissed in default in the early hours of the day. Dismissal of a case in default causes immense hardship to the party and to get it restored is not a easy process. That is why Courts have been impressed upon to wait for the parties till late hours before the case is dismissed in default due to non appearance of the party or his counsel.
This Court is in agreement with the ratio laid down by the Delhi High Court. In early hours, complaint should not be dismissed as it would cause hardship to the complainant and process is not easy to restore the same. In the present case also, Trial Court waited upto 12.30 hours and thereafter, dismissed the complaint. As per Rojkam, complainant remained present after recess hours. If learned Trial Court could have waited for some time, then, Court could have proceeded with the matter and it would have meet the ends of justice.
In view of above, order dated order dated 16.11.2009 passed by the learned Chief Judicial Magistrate, Godhra in Criminal Case No. 28 of 2004 is quashed and set aside. Appellant herein is directed to remain present before the Trial Court as and when matter is called. Appeal is allowed accordingly.
Registry is directed to send Record and Proceedings to the Trial Court forth with.