Umesh Kumar vs Moudgil Carpets and Rugs and Others

J.S. Sekhon, J.—The complaint filed by Umesh Kumar complainant-appellant against the accused-respondents for an offence under Sections 138/142 of the Negotiable Instruments Act, 1881, as amended by Act 66 of 1988, read with Section 420 IPC was adjourned to 6th October, 1992, for serving notices by the Chief Judicial Magistrate, Panipat. The case was taken up on 5th October, 1992, as 6th October was declared holiday. On 5th October none of the parties were present and the following order was passed:

Present: None.

Case taken up today as 6.10.92 has been declared holiday. So, the case adjourned to 17.11.1992 for same proceedings. Parties/APP/accused be informed accordingly.

On 17.11.1992 neither the complainant nor the accused turned up which resulted in dismissal of the complaint in default.

The complainant had moved an application u/s 378(4) of the Code of Criminal Procedure, for granting leave to appeal against the impugned order as in a summons case the dismissal of the complaint in default would mean to acquittal in view of the provisions of Section 256 of the Code. The Division Bench of this Court issued notice to the respondents. Strangely enough, the accused respondents have failed to turn up despite their service by affixation of notices on the door of their residential houses. Under these circumstances, vide order dated 27th May, 1993, the Division Bench of this Court observed that there was no option but to dispose of appeal against acquittal in absence of the accused respondents.

We have now heard Mr. Cheema, Senior Advocate, learned Counsel for the complainant appellant, besides perusing the record.

The perusal of the record reveals that no notices were issued either to the complainant or to the accused respondents for appearance on 17th November, 1992. The interim order dated 5th October, 1992, also reveals that the case was taken up in the absence of the parties or their counsel as 6.10.1992 was declared holiday. It was specifically remarked in that order that notices for 17.11.1992 be issued to the parties. Consequently, it cannot be said that the complainant failed to appear on 17th November, 1992 due to any fault on his part as he was not made aware of the changed date in the complaint case. Thus, it was a proper case for the trial Court to have exercised its discretion u/s 256(1) of the Code of Criminal Procedure in adjourning the case to some other date for giving notices to the parties including the complainant. Strangely enough, the trial Court has passed the impugned order dismissing the complaint in default without making any reference whether notices were issued to the complainant or accused, what to say of ascertaining whether their actual service was effected for appearance for 17th November, 1992. Thus, the non application of mind by the trial Court in this regard and non exercise of the above referred discretion, had resulted in miscarriage of justice.

Consequently, by accepting this appeal against acquittal, we set aside order of the trial Court and direct the trial Court to restore the complaint against its original number and to proceed further in the case according to law from the stage, at which it was dismissed in default after giving notices to the accused respondents. The complainant through his counsel is directed to appear before the trial Court on 16.8.1993. The trial Court file be sent back forthwith.