Criminal Misc. No. 4671-M of 2005 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Misc. No. 4671-M of 2005 Date of decision: 24.4.2008. Vinod Kumar ….Petitioner. Versus Gaje Singh …Respondent. CORAM: HON’BLE MR. JUSTICE RAJESH BINDAL Present: Mr. Suraj Mal Kundu, Advocate for Mr. Ramesh Hooda, Advocate for the petitioner. None for the respondent. RAJESH BINDAL J. Challenge in the present petition is to orders passed by the learned Additional Chief Judicial Magistrate, Sonepat dated 23.10.1998 (Annexure P-2), 30.3.2001 (Annexure P-5) and 3.11.2003 (Annexure P-8), whereby the complaint by the petitioner under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the Act') was dismissed in default and even the application for restoration was also dismissed. Briefly the facts as stated in the petition, are that the respondent issued a cheque in favour of petitioner for Rs. 2,45,000/- bearing no. 812862 dated 6.9.1996 drawn on Central Bank of India. On presentation for encashment, the same was returned by the banker of the respondent with the remarks “stop payment”. When in spite of reminder the payment was not made by the respondent to the petitioner, notice was sent. Even on failure of the respondent to clear the amount of the cheque within the period prescribed, a complaint under Section 138 of the Act was filed on 29.11.1996. Because of non-appearance of the petitioner on 23.10.1998 the complaint was dismissed for non-prosecution. Immediately the petitioner filed an application for restoration and the same was dismissed in default vide order dated 30.3.2001. Another application filed by the petitioner for restoration was dismissed by the learned court below relying upon the judgment of this Court in Karandeep Singh Vs. Criminal Misc. No. 4671-M of 2005 2 Jagdish Goyal, 1997(4) RCR (Criminal) 490 as not maintainable vide order dated 3.11.2003. In Karandeep Singh's case (supra) this Court had opined that once the complaint was dismissed in default the Magistrate had no jurisdiction to restore it under any of the provisions of the Code of Criminal Procedure. It is in this factual matrix that the petitioner is before this Court. Learned counsel for the petitioner submitted that non-appearance of the petitioner on the date fixed, when the complaint was dismissed in default, was neither intentional nor willful. In fact the petitioner was present in the court on that date but due to rush of work he could not hear when the case was called out for hearing and as a result he could not put in appearance or call his counsel. The complaint was dismissed for non prosecution at 12.50 p.m. Immediately thereafter the application for restoration was filed. Though the same was also dismissed however on that date also it was for the reason that the counsel was busy in the election to the Bar Association. The submission is, in any case, once the application for restoration itself was not maintainable as has been opined by the court below in the subsequent order passed on 3.11.2003, the petitioner should not be non-suited on that ground. No one appeared for the respondent. The moot point is as to what course is to be adopted when the complainant does not appears or when a complaint filed before the Court below is dismissed for non-prosecution. The Judicial Magistrate while acting under Section 256 of the Code of Criminal Procedure has to take into consideration that the powers vested therein have to be exercised in the interest of justice. It is envisaged under the provision that in a given situation the Magistrate is even entitled to dispense with the attendance of the complainant and proceed with the case. The effort of the Magistrate should be to dispose of the cases on merits instead of dismissing them in default. Dismissal of a case in default unnecessarily delays the disposal of the same on merits as application for restoration of a petition challenging order of dismissal in default consumes more time than simply adjourning the case for a date. However, in case the absence is repeated, the court is not Criminal Misc. No. 4671-M of 2005 3 required to wait for a litigant. Repeated absence of the complainant cannot be ignored. If the absence is only on one date of hearing and prior thereto the complainant had been perusing his case diligently, the court can consider adjourning the case for a date recording the reason therefor. Effort should not be to punish the complainant only on account of his non-appearance on one date. There should be application of mind before order of dismissal of complaint is passed merely on account of non-appearance on one date of hearing. The conduct of parties in totality is to be considered. Similar view has been expressed by this Court in Punjab State Civil Supplies Corporation Ltd. Versus Mangat Rai 2002 (4) RCR (Crl.) 458. In the present case the complainant was pursuing the complaint ever since the same was filed on November 29, 1996, till the same was dismissed for non-appearance on October 23, 1998. Though the application for restoration was not maintainable, however, the filing thereof immediately does show the bonafide of the petitioner and makes out a case of his bonafide absence at the time when the case was called for hearing. As to what course is to be adopted when the complaint has been dismissed for non-prosecution and the application for restoration thereof is not maintainable, has already been considered by this Court in Criminal Misc. No. 36522-M of 2006 titled as Purushotam Mantri Vs. Vinod Tandon decided on 30.1.2008. While relying upon an earlier judgment of this Court in Jitender Bajaj Vs. State (U.T. Chandigarh) and others, 2005 Criminal Law Journal 3136 it was held that the application for restoration of complaint filed under section 138 of the Act was not maintainable, however, in case sufficient cause is shown for non-appearance, this Court can certainly exercise the power under Section 482 Cr.P.C. for setting aside the order of dismissal of the complaint and discharge of the accused. The relevant para of judgment in Purushotam Mantri's case (supra) is extracted below: “Learned counsel for the petitioner did not dispute that application filed by the petitioner before the Court below for recalling the order was not maintainable and accordingly the same was rightly Criminal Misc. No. 4671-M of 2005 4 dismissed by the Court below. However, submission is that this Court under Section 482 of the Code can certainly direct restoration of the complaint, which was dismissed in default if sufficient reason is found for his non-appearance on the date fixed. For the purpose he has relied upon the observations made by this Court in Jitender Bajaj Vs. State (U.T. Chandigarh) and others 2005 Crl.L.J. 3136, which are reproduced below:- “…… When the Magistrate, in a summon case, has dismissed the complaint and acquitted the accused due to absence of the complainant on the day of hearing, he cannot later on restore the complaint and set aside the order of acquittal, even if the complainant shows very good reasons for his failure to be present on the day of dismissal of the complaint. In such situation, the only remedy available with the complainant is to file appeal or revision against such order or petition under Section 482 of the Code before this Court for setting aside the said order of dismissal of the complaint and acquittal of the accused on the ground that in the given facts and circumstances, the dismissal of the complaint and acquittal of the accused was not justified or there were sufficient reasons for non-appearance of the complainant before the Court on the date fixed, or the Magistrate has not properly exercised his discretion while not adjourning the complaint and dismissing the same.” The same was followed by this Court in Criminal Misc. No. 67626-M of 2006, Om Parkash Vs. M/s Golden Forest India Ltd. And others, decided on 19.2.2008. If the pronunciation of law as extracted above is applied in the facts and circumstances of the present case, it is found that the complaint filed Criminal Misc. No. 4671-M of 2005 5 by the petitioner was dismissed for non-prosecution on 23.10.1998 and the bona fide of the petitioner is established from the fact that the application for restoration thereof was filed immediately thereafter and the reason assigned for non-appearance seems to be bona fide. For the reasons stated above while accepting the petition, the impugned orders dated 23.10.1998, 30.3.2001 and 3.11.2003 (Annexure P-2, P-5 and P-8 respectively) passed against the petitioner are set aside. The complaint filed by the petitioner is restored to its original number. The petitioner is directed to appear before the trial Court on 24.5.2008 for further proceedings. As the respondent has remained unrepresented despite service, he is directed to be summoned for a date to be fixed by the trial Court for the purpose. The petition is disposed of accordingly. (RAJESH BINDAL) APRIL 24, 2008 JUDGE ritu-II (Refer to Reporter) Criminal Misc. No. 4671-M of 2005 6 Criminal Misc. No. 4671-M of 2005 The judgment delivered in the present case was perused by me while deciding Criminal Misc. No. 50059-M of 2004. It was noticed that at page 2 of the judgment in para 3 after the word the complainant 'does' word 'not' was required to be mentioned, however, the same was missed. Accordingly, it is directed that in para 3 at page 2 of the judgment in the second line starting from word 'complainant' in between the words 'does' and 'appears' word 'not' be added. In the main judgment the correction has been made with my initials. May 28, 2008 (RAJESH BINDAL) ritu-II JUDGE