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Judgment
P. Sam Koshy, J.
By way of instant acquittal appeal, the appellant-complainant has challenged the order dated 22-2-2013 passed by Chief Judicial Magistrate, Surajpur in Criminal Case No. 1318/2012. By impugned order, the Trial Court has dismissed the complaint case of the appellant-complainant for want of prosecution on account of non-appearance of the appellant-complainant on 22-2-2013.
Brief facts leading to the instant appeal are that the husband of the respondent-accused was having good relations with the appellant-complainant and that on account of the said good relation the husband of respondent-accused purchased certain electrical items worth Rs. 35,000/- on credit from the shop of the appellant-complainant and, in addition, borrowed hand-loan of Rs. 40,000/- from the appellant-complainant. That, towards the discharge of the said liability, the respondent-accused issued a cheque bearing No. 745958, dated 15-12-2011 drawn on Surguja Kshetriya Gramin Bank, Branch Salka, Distt. Surguja, amounting to Rs. 30,000/- in favour of the appellant-complainant. When the said cheque was presented before the Bank by the appellant-complainant, it got dishonoured account of insufficient funds. In spite of notice being served upon respondent-accused, she did not care to discharge the liabilities and the appellant-complainant was left with no other option but to file a complaint case under Section 138 of the Negotiable Instruments Act, 1881 (for short, "the NI Act") on 31-7-2012 against the respondent-accused.
The said complaint case was, after the statements were recorded, registered as Criminal Case No. 1318/2012 on 16-8-2012. Thereafter, on all the dates of hearing the appellant-complainant was appearing before the Trial Court and since then the matter has been fixed for the appearance of the respondent-accused before the Trial Court and, in due course of time, the matter was adjourned on quite a number of occasion. The matter was finally listed on 22-2-2013 for the evidence of appellant-complainant. However, on account of an error on the part of the Counsel appearing for the appellant-complainant in taking note of the date of hearing, there was no representation on behalf of the appellant-complainant when the matter was fixed before the Trial court on 22-2-2013. Since there was no representation on behalf of the appellant-complainant on 22-2-2013, the Trial Court vide impugned order dated 22-2-2013 rejected the complaint of the appellant-complainant holding that since the complainant has not been able to establish his case, the complaint case of the complainant stands dismissed and, at the same time, the Trial Court acquitted and exonerated the respondent-accused of the charge of having committed the offence under Section 138 of NI Act.
It is this order dated 22-2-2013, which has been challenged by appellant-complainant by way of instant acquittal appeal.
Learned Counsel for the appellant-complainant, referring to the order-sheets of the Trial Court, has pointed out that if the entire order sheets of the case file is perused it would show that the appellant-complainant has been represented before the Trial Court on all of the dates of hearings except on the date on which the matter has got dismissed. That the said act on the part of the Trial Court in rejecting the complaint case of the appellant-complainant only on account of non-appearance of the complainant on one date of hearing is too harsh and technical, and that the same would defeat the ends of justice, rather, the same would not be in the interest of justice, rather, such decisions in general would be beneficial to the wrongdoers. Thus, the Counsel for the appellant-complainant prays that the impugned order dated 22-2-2013 may be set aside and appellant-complainant may be permitted to appear before the Trial Court which, in turn, may decide the case on merits so as to show that substantial justice has been delivered. In addition, learned Counsel for the appellant-complainant submits that in the event if the said complaint case is not restored to its original position, the appellant-complainant shall be put to irreparable loss.
On the other hand, learned Counsel for the respondent-accused has supported the impugned order passed by the Trial Court and has stated that there was no plausible and justifiable reason on the part of the appellant-complainant for his non-appearance before the Trial Court on the said given date of hearing and, as such, the case of the appellant-complainant does not deserve to be reopened again and the instant acquittal appeal is liable to be rejected.
Having heard the rival contentions put forth by the learned Counsel appearing for either side, it is trite to refer to a decision of Hon''ble Supreme Court made in somewhat identical set of facts, i.e., in Mohd. Azeem Vs. A. Venkatesh and Another, . Vide the said judgment, the Hon''ble Supreme Court has, in very categorical terms, held that the dismissal of a complaint for one singular default in appearance on the part of the complainant is improper.
If we compare the facts of the said case with that of the present case, it would show that the facts leading to the present circumstances are almost of a similar nature. In the present appeal also, if we see the record, it would show that the complainant had been appearing before the Trial Court regularly without any default and it is only on 22-2-2013, i.e., the date on which the complaint was rejected, that there was a first default on the part of the complainant and on the very same date the Trial Court dismissed the complaint of the appellant-complainant and acquitted the respondent of the charge levelled against him for the offence under Section 138 of NI Act.
Relying upon the said decision of Hon''ble Supreme Court, the Madhya Pradesh High Court also in a decision made in Yashwant Singh Vs. Shri Pyarelal Uikey, , has taken a similar view holding that the dismissal of a complaint on the first default on the part of the complainant in his appearance before the Court is improper and unjustified.
Taking the aid of the ratio laid down by the Hon''ble Supreme Court in the case of Mohd. Azeem (supra), and also in the light of the judgment passed by the Madhya Pradesh High Court in Yashwant Singh''s case (supra), in my view, the impugned order passed by the Trial Court in the instant case, appears to be too harsh and technical.
Accordingly, the instant acquittal appeal is allowed. The impugned order dated 22-2-2013 passed by Chief Judicial Magistrate, Surajpur, in Criminal Case No. 1318/2012, dismissing the complaint case on account of default in appearance on the part of the appellant-complainant, is set aside/quashed and the matter is remitted back to the Trial Court for deciding the same on its own merits after giving due opportunity of defence to either side.
Since both the parties are representing before this Court, it is directed that both the parties, i.e., the complainant as well as the accused, shall remain present before the Trial Court on 1-7-2014 and the Trial Court shall proceed further with the case from the stage for which the case was fixed on 22-2-2013. The acquittal appeal stands allowed and is disposed of accordingly.