Judgment:
Criminal Misc.-M No.2299 o”
1. IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Misc.-M No.2299 of 2012 Date of decision :
01. 03.2013 The Haryana Welfare Cooperative Non-Agricultural (Thrift and Credit) Society Ltd......Petitioner Versus Satish Kumar .....Respondent CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1
Whether Reporters of local papers may be allowed to see the judgement?.”
2. To be referred to the Reporters or not?.”
3. Whether the judgment should be reported in the Digest?.
Present: Mr.Tara Chand Dhanwal, Advocate for the petitioner Mr.Divya Sarup, Advocate for the respondent RANJIT SINGH, J.
The complaint filed by the petitioner under Section 138/141 of the Negotiable Instruments Act was dismissed for lack of prosecution on 07.10.2011.
The order in this regard reads as under:- “Present: None for the complainant Accused on bail with Counsel Shri M.K.Bishnoi, Adv.“It is already 2.10 pm.
None appeared on behalf of the complainant, despite several calls.
Thus, it appears that he does not want to pursue the complaint in hand.
The presence of the complainant was necessary to persuade the complaint further.
The Court has no other option except to dismiss the complaint for want of prosecution.
Hence, the complaint is hereby dismissed for lack of prosecution.
Accused is hereby acquitted from the notice of accusation served upon him.
His bail bonds and surety bonds also stands discharged.
File be consigned to the record room after due compliance.”
Criminal Misc.-M No.2299 o”
2. The complainant had moved an application for restoration of the complaint on the same day i.e.on 7.10.2011 but the trial Court declined the prayer of the petitioner and had dismissed this application on 28.11.2011.
Copy of this order is on record as Annexure P-4.
The petitioner has placed reliance on the judgment passed in the case Narender Parashar versus Jagbir Singh, 2009(4) LJ.720 (P&H) where it is observed that when a complaint under Section 138 of the Negotiable Instruments Act is dismissed in default due to wrong noted date, the same can be ordered to be restored in its original number so that parties should not suffer for mistake of the counsel.
The reason disclosed in the application seeking restoration of the complaint was that authorized person of the complainant Society was out of station in connection with some domestic work so he could not reach in time.
This fact will be well evidenced by the action of the petitioner in moving this application on the same day but the trial Court dismissed the application and declined to recall the order in question.
Reference to Section 256 Cr.P.C.may be of advantage here.
This provision regulates the power of the Court in case of non- appearance or death of the complainant.
As per this Section if the summons has been issued on complaint and on the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall notwithstanding anything hereinbefore Criminal Misc.-M No.2299 o”
3. contained, acquit the accused unless for some reason he thinks it proper to adjourn the hearing of the case to some other day.
There is proviso under this Section which says that where the complainant is represented by a pleader or by the officer conducting the prosecution or where the Magistrate is of the opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case.
The trial Court apparently has not kept in view the provisions of Section 256 Cr.P.C.It is not recorded by the Court if the presence of the complainant was necessary on the date fixed.
It is not always necessary to dismiss the complaint on account of absence of the complainant.
The Court while doing so has to see if there is some reason for which it could be proper to adjourn the hearing of case to some other day where a party is represented by a pleader then the Magistrate has also to form an opinion whether personal appearance of the complainant is necessary or not or may dispense with his attendance and proceed with the case.
That being the position, the Magistrate has passed impugned order by ignoring the provisions of Section 256 Cr.P.C.The orders Annexures P-2 and P-4 can not be sustained and are set aside.
The complaint is restored to its original position.
Let the parties appear before the trial Court on 25.03.2013.
The trial Court would continue with the proceedings in accordance with law.
The petition is, accordingly, disposed of.
March 01, 2013 ( RANJIT SINGH ) reena JUDGE