2018 (9) TMI 997 - HC - Indian Laws

Dishonor of cheque due to insufficiency of goods - Section 138 of Negotiable Instruments Act - main contention of the appellant is that after closing the defence side evidence, the matter was not posted for sometime - Held that - In the present case on hand, it is stated that the matter was reserved for judgment on 20.01.2010 and subsequently it was adjourned to 27.01.2010 for reopening the case. Either on 20.01.2010 or 27.01.2010, the presence of the appellant is not necessary. Even assuming that the presence of the appellant is necessary, the trial Court ought to have issued a notice to the appellant before dismissing the complaint. But, after completion of evidence of the appellant, the learned Magistrate should not have dismissed the complaint for default under Section 256 Cr.P.C. The trial Court should have issued a notice to the appellant before dismissing the complaint or atleast passed the judgment on merits - the matter is remitted back to the learned Judicial Magistrate-II, Coimbatore and the learned Judicial Magistrate is directed to dispose of the complaint on merits and in accordance with law - matter on remand.

Summary

Issues:
- Appeal against order dated 01.02.2010 passed by Judicial Magistrate No.II, Coimbatore in C.C.No.402 of 2006.
- Dismissal of the case for default and acquittal of the respondent.
- Failure to consider appellant's presence on hearing dates.
- Violation of provisions of law and settled propositions by the Hon'ble Apex Court.

Analysis:
1. Background and Allegations:
The case involves a dispute where the appellant, a corporation selling dyes and chemicals, received a post-dated cheque from the respondent which bounced due to insufficient funds. Despite issuing a notice, the respondent failed to make payment or respond, leading to a complaint under Section 138 of the Negotiable Instruments Act.

2. Trial Proceedings:
During the trial, the prosecution presented evidence including the cheque, notice of dishonour, and acknowledgment. The respondent denied the allegations and did not present any evidence. The case was then set for judgment after closing the defense side evidence.

3. Dismissal for Default:
The respondent filed an application to reopen the case and for defense side evidence. However, on the adjourned date, the appellant did not appear, resulting in the dismissal of the case for default by the Trial Court.

4. Legal Provisions and Precedents:
Section 256 of the Cr.P.C. deals with non-appearance of the complainant and outlines the procedure for acquittal. The appellant argued that the Trial Court failed to follow the provisions of law and cited judgments emphasizing the necessity of judicial discretion in such matters.

5. Judicial Intervention and Directions:
The High Court analyzed the situation, noting that the appellant's presence was not essential on the adjourned dates as per legal provisions and precedents. The Court found the dismissal of the case for default unjust and ordered the matter to be remitted back to the Trial Court for a decision on merits, ensuring due opportunity for both parties.

6. Conclusion:
The High Court set aside the Trial Court's order, emphasizing the importance of following legal procedures and providing fair opportunities for all parties involved. The judgment highlighted the need for judicial discretion and adherence to established legal principles in such cases to ensure justice is served effectively.