2019 (3) TMI 1959 - HC - Indian Laws

Dishonor of Cheque - Insufficient Funds - acquittal of the accused - dismissal of a complaint in default of appearance of the complainant - HELD THAT - There are merit in the present petition to set-aside the impugned order partly. It is well settled principle of law that dismissal of a complaint in default of appearance of the complainant amounts to acquittal of the accused under Section 256 Cr.P.C., 1973 and, therefore, the revision before the Court of Sessions was not maintainable as the complainant had a right to file an appeal under Section 378(4) Cr.P.C., 1973 thus, the impugned order dated 13.08.2015 passed by the Additional Sessions Judge, Ludhiana is liable to be set-aside on the ground of non-maintainability of the revision petition. However, the finding recorded by the Revisional Court that the respondent has shown a bona fide cause for non-appearance is upheld. Therefore, considering the fact that the petitioner has shown a bona fide ground that he could not deposit the publication charges in time, the order of trial Court dismissing the case for non-prosecution, seems to be a very harsh decision. It is not disputed that the petitioner was not served at that stage and the complainant was required to deposit the publication charges for effecting service upon the petitioner/accused so arrayed in the complaint. Thus, holding that the complainant has shown bona fide ground for his non-appearance and the present petitioner/complainant was avoiding service of summons for which the trial Court has fixed the date for effecting the service by way of publication, no prejudice will be caused to the petitioner if the complaint is restored to be decided on merits - thus, the present petition is partly allowed and the order dated 13.08.2015 is partly set-aside, qua non-maintainability of the revision, however, the complaint is restored on payment of costs of ₹ 10,000/- to the petitioner/complainant as litigation charges. Petition allowed in part.

Summary

Issues:
Setting aside order of Additional Sessions Judge restoring criminal complaint under section 138 of Negotiable Instruments Act after dismissal for non-appearance.

Analysis:
1. The petition sought to set aside the order passed by the Additional Sessions Judge, Ludhiana, which restored the criminal complaint under section 138 of the Negotiable Instruments Act. The trial Court had dismissed the complaint for non-appearance of the complainant and his counsel, leading to the revision petition filed by the respondent/complainant.

2. The respondent/complainant had filed the complaint due to dishonour of two cheques by the bank. The trial Court dismissed the complaint on 01.06.2015 for non-appearance of the complainant and his counsel. The Additional Sessions Judge accepted the revision petition without issuing notice to the petitioner/respondent, citing the complainant's bona fide reason for non-appearance and the trial Court's failure to provide further opportunity to deposit publication charges.

3. The petitioner argued that the revision was not maintainable as the complaint was discharged for non-appearance, amounting to acquittal. It was contended that the Revisional Court should have issued notice to the petitioner and provided an opportunity for hearing before setting aside the trial Court's order.

4. The respondent's counsel countered by stating that since the petitioner was not served at the time of dismissal, notice was not required. It was emphasized that the trial Court had dismissed the complaint hastily without giving proper opportunity to deposit publication charges, despite the complainant's regular appearances.

5. The respondent relied on the judgment "Purshotam Mantri v. Vinod Tandon" to argue that the High Court, under its inherent power, can direct restoration of a case dismissed in default upon finding sufficient evidence for non-appearance. The respondent contended that the trial Court should have explored alternatives before dismissing the case for non-prosecution.

6. Additionally, the respondent cited the judgment "Punjab State Warehousing Corporation, Faridkot v. Shree Durga Ji Traders and others," where the Supreme Court held that the High Court's inherent power can be exercised to prevent miscarriage of justice, even if alternative remedies are available. The judgment emphasized that technical grounds should not hinder the pursuit of justice.

7. The Court found merit in setting aside the revision order due to non-maintainability but upheld the respondent's bona fide cause for non-appearance. The Court exercised its inherent power under Section 482 Cr.P.C., 1973 to restore the complaint, considering the time elapsed since the impugned order and the need to prevent prejudice to the complainant.

8. Ultimately, the petition was partly allowed, setting aside the order based on non-maintainability, and restoring the complaint on payment of litigation charges. The parties were directed to appear before the trial Court for further proceedings.