2021 (8) TMI 658 - HC - Indian Laws

Maintainability of Petition - availability of an alternative remedy of filing an appeal - the complaint filed by the petitioner was dismissed for non prosecution - HELD THAT - If the petition is rejected, it would resulted in miscarriage of justice. Availability of an alternative remedy of filing an appeal is not an absolute bar in entertaining a petition under Section 482 of the Code. Trial court has dismissed the complaint on technical ground and therefore, interests of justice required this Court to exercise its jurisdiction to set aside the order of the trial court so that the trial court can proceed with the trial on merits. Though the statement of the petitioner that for the last few hearings, the petitioner could not attend the hearing before the court below due to personal and health issues and he had lost the contact details of the counsel on record, does not evoke confidence of the court, the matter could be restored on terms - Resultantly, the petition is allowed. The complaint is restored to file on payment of cost of ₹ 1,000/- to the respondent-accused - The court below shall take up the matter at the stage it was dismissed for non prosecution.

Summary

Issues:
Petition to quash order dismissing complaint for non-prosecution under Section 138 of N.I. Act. Restoration of complaint application rejected by trial court. Exercise of powers under Section 482 of Cr.P.C. by High Court.

Analysis:
The petitioner filed a petition seeking to quash the order dated 03.06.2017, which dismissed the complaint for non-prosecution under Section 138 of the N.I. Act. The trial court dismissed the complaint after the complainant remained absent on several dates, leading to the conclusion that the complainant was not interested in prosecuting the case. The petitioner's counsel subsequently filed an application for restoration of the complaint, but the trial court rejected it citing the settled legal position that once a complaint is dismissed for default, the Magistrate lacks inherent power to restore it. The petitioner contended that personal and health issues prevented attendance at hearings, resulting in a loss of contact with the counsel. The petitioner argued that the High Court, under Section 482 of Cr.P.C., could quash the order despite the availability of an appeal as an alternative remedy.

The counsel for the petitioner relied on the decision of the Hon'ble Apex Court in a specific case to support the argument that the High Court could exercise its powers under Section 482 of Cr.P.C. to secure the ends of justice. The Apex Court highlighted that the availability of an alternative remedy of appeal does not bar entertaining a petition under Section 482. The Court emphasized that the trial court's dismissal of the complaint on technical grounds necessitated the High Court's intervention to ensure justice and allow the trial to proceed on merits. The Court noted the importance of setting aside the trial court's order to rectify any miscarriage of justice caused by the dismissal.

Ultimately, the High Court allowed the petition, restoring the complaint to the file on the condition that the petitioner pays a cost of ?1,000 to the respondent-accused. The Court directed the lower court to resume proceedings at the stage where the complaint was dismissed for non-prosecution. Additionally, the petitioner was instructed to appear before the trial court on a specified date without waiting for further notice. The High Court's decision aimed to address the issues of non-prosecution, technical dismissal, and the need to secure the ends of justice in the case.