2016 (5) TMI 1556 - HC - Indian Laws

Dishonor of Cheque - none of the complainant was present despite of service of notice - petitioner was not present due to mistake - HELD THAT - It is not in dispute that the complaint was pending trial from the year 2013 and there is no material on record to suggest that there had earlier been any default on the part of complainant. Even when the matter was listed on 2.6.2015, petitioner, as per his version, could not appear as he had noted down a different date and in support of such contention, he has also annexed the copy of his case diary - Evidently, a very hyper technical and pedantic approach has been adopted by the learned court below by dismissing the complaint for default. The complainant was diligently pursuing his remedies and he has also given an explanation for his non appearance on the date fixed. Even otherwise there is no reason why the complainant would stop pursuing his case, after all it is a complaint involving dishonour of cheque. That apart, it is always in the interest of justice that the cases should be adjudicated on merits. Similar issue came up before the Hon ble Supreme Court in Mohd.Azeem Vs A.Venkatesh another 2002 (8) TMI 883 - SUPREME COURT and the Hon ble Supreme Court has held that the complaint ought not to have been dismissed by the court on account of single default on the part of complainant. The order passed by the learned court below is extremely harsh. Moreover, the learned court below has not at all considered as to whether personal attendance of the complainant was essential on the date for the progress of the case - appeal allowed - decided in favor of appellant.

Summary

Issues: Appeal against dismissal of complaint under Section 138 of Negotiable Instruments Act for default.

Analysis:

Issue 1: Dismissal of complaint for default by learned Additional Chief Judicial Magistrate.

The complaint filed under Section 138 of the Negotiable Instruments Act was dismissed for default by the learned Additional Chief Judicial Magistrate on 2.6.2015. The complainant was absent despite service, leading to the dismissal of the complaint. The order of dismissal was considered harsh and unjust by the higher court.

Issue 2: Validity of dismissal for a single default.

The petitioner contended that the dismissal for default was unjustified as there was no prior default on the part of the complainant. The petitioner explained his absence by noting down a different date and provided evidence to support his claim. The court noted that a hyper-technical approach was taken by the lower court in dismissing the complaint for a single default, which was considered unwarranted.

Issue 3: Comparison with relevant Supreme Court judgment.

The court referred to a similar case decided by the Supreme Court, where it was held that a complaint should not be dismissed solely due to a single default by the complainant. The Supreme Court emphasized that the absence of the complainant on one day should not result in the dismissal of the complaint, especially when a valid reason for the absence is provided. The lower court's strict approach in this case was criticized for failing to consider the merits of the case and the necessity of the complainant's presence.

Issue 4: Decision and direction of the High Court.

The High Court found merit in the appeal and set aside the impugned order of dismissal passed by the Additional Chief Judicial Magistrate. The parties were directed to appear before the court on a specified date for further proceedings, emphasizing the importance of adjudicating cases on their merits. The judgment highlighted the need for a balanced and just approach in dealing with matters involving the dishonour of cheques.

Overall, the judgment focused on the importance of ensuring justice through fair and reasonable procedures, emphasizing that a single default by the complainant should not lead to the dismissal of a complaint without considering the circumstances and merits of the case.