Punjab-Haryana High Court
Manjit Kaur vs Harjinder Kaur on 20 March, 2024
Author: Pankaj Jain
Bench: Pankaj Jain
Neutral Citation No:=2024:PHHC:040679
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
258 2024:PHHC:040679
CRM-A-2797 of 2019
Date of decision: 20.03.2024
Manjit Kaur ..Applicant
Vs.
Harjinder Kaur ..Respondent
CORAM: HON'BLE MR. JUSTICE PANKAJ JAIN
Present: Mr. H.S. Batth, Advocate
for the applicant.
Mr. Amit Arora, Advocate
for the respondent.
***
PANKAJ JAIN, J.(ORAL)
CRM-A-2797 of 2019 The prayer in the application filed under Section 378(4) Cr.P.C. filed by applicant leave to appeal from the order dated 12.09.2019 passed by Chief Judicial Magistrate, Tarn Taran whereby the complaint filed under Section 138 of the Negotiable Instruments Act, 1881 has been dismissed in default.
Upon considering the submissions, the instant applicant is allowed and leave to prefer appeal is granted to the applicant.
Registry is directed to assign the number to the instant appeal forthwith.
1 of 5 ::: Downloaded on - 06-04-2024 03:45:02 ::: Neutral Citation No:=2024:PHHC:040679 2024:PHHC:040679 -2- CRM-A-2797 of 2019 Main case The appeal seeking leave to appeal is directed against the order dated 12.09.2019 passed by Chief Judicial Magistrate, Tarn Taran, whereby the complaint preferred by the appellant was dismissed for non-prosecution on default of the appellant invoking provisions of Section 256 of the Code of Criminal Procedure (for short, 'the Code').
2. Applicant filed complaint against the respondent for the offence punishable under Section 138 N.I. Act vis-à-vis cheque of Rs. 15 lacs. The trial Court considering the preliminary evidence brought on record by the applicant summoned the respondent. On 12.09.2019, when the matter was fixed for evidence of the accused, the applicant/complainant could not appear leading to passing of the impugned order. Further submits that once the matter was fixed for appearance of the accused, the trial Court ought not to have resorted by invoking provisions of Section 256 of the Code to dismiss the complaint. Reliance is being placed on law laid down by Hon'ble the Supreme Court in S. Rama Krishna vs S. Rami Reddy (D) By His Lrs. And others 2008 (5) SCC 535 and M/s BLS Infrastructure Limited vs M/s Rajwant Singh and others 2023 (4) SCC 326.
3. Per contra, counsel for the accused submits that it was not the first default of the complainant, however, he is not in a position to dispute that the matter was indeed on the said date was fixed for appearance of the accused.
4. Having heard counsel for the parties and going through the record of the case, this Court finds that law with respect to invoking 2 of 5 ::: Downloaded on - 06-04-2024 03:45:03 ::: Neutral Citation No:=2024:PHHC:040679 2024:PHHC:040679 -3- CRM-A-2797 of 2019 provisions of Section 256 of the Code already stands settled by Apex Court in Associated Cement Company Limited vs Keshvanand 1998 (1) SCC 687 which was followed in S. Anand vs Vasumathi Chandrasekar 2008 (4) SCC 67. These two judgments have further been followed in M/s BLS Infrastructure's case (supra), the relevant of which is as under:-
"11. In the case of S. Anand (supra), addressing a situation where the complainant was absent but had already examined his witnesses, this Court observed as follows:
"12. Section 256 of the Code provides for disposal of a complaint in default. It entails in acquittal. But, the question which arises for consideration is as to whether the said provision could have been resorted to in the facts of the case as the witnesses on behalf of the complainant have already been examined.
13. The date was fixed for examining the defence witnesses. The appellant could have examined witnesses, if he wanted to do the same. In that case, the appearance of the complainant was not necessary. It was for her to cross-examine the witnesses examined on behalf of the defence."
After observing as above, in paragraph 15, it was held thus:
"15....when the prosecution has closed its case and the accused has been examined under section 311 of the Code of Criminal 3 of 5 ::: Downloaded on - 06-04-2024 03:45:03 ::: Neutral Citation No:=2024:PHHC:040679 2024:PHHC:040679 -4- CRM-A-2797 of 2019 Procedure, 1973 the Court was required to pass a judgment on merit of the matter."
12. In Associated Cement Co. Ltd. (supra), the purpose of inserting a provision like Section 256 of the code was discussed and in light thereof, in paragraph 16, it was observed as under:
"16. What was the purpose of including a provision like Section 247 in the old Code (or Section 256 in the new Code). It affords some deterrence against dilatory tactics on the part of a complainant who set the law in motion through his complaint. An accused who is per force to attend the court on all posting days can be put to much harassment by a complainant if he does not turn up to the court on occasions when his presence is necessary. The section, therefore, affords protection to an accused against such tactics of the complainant. But that does not mean if the complainant is absent, the court has a duty to acquit the accused in invitum."
After observing as above, it was held that where the complainant had already been examined as a witness in the case, it would not be appropriate for the Court to pass an order of acquittal merely on non-appearance of the complainant. Thus, the order of acquittal was set- aside and it was directed that the prosecution would 4 of 5 ::: Downloaded on - 06-04-2024 03:45:03 ::: Neutral Citation No:=2024:PHHC:040679 2024:PHHC:040679 -5- CRM-A-2797 of 2019 proceed from the stage where it reached before the order of acquittal was passed."
5. Thus, the test to invoke Section 256 of the Code is whether the proceedings were such for which the presence of the complainant was necessary. In the considered opinion of this Court, the trial Court failed to make itself alive of the situation that the matter was indeed fixed for appearance of the accused and, thus, was not justified in dismissing the complaint and ordering acquittal of the accused on mere non-appearance of the complainant.
6. Keeping in view the aforesaid dictum and the fact that on the day the impugned order was passed presence of the applicant was not necessary, this Court finds that the impugned order cannot be sustained and is hereby set aside. Complaint is ordered to be restored to its original number and stage. Parties are directed to appear before Trial Court on 22.04.2024.
7. As the cheque was of the year 2016 and the complaint was filed in 2016, this Court is quite sanguine that the Trial Court shall decide the complaint expeditiously.
8. In view of the above, the present appeal is allowed.
(PANKAJ JAIN)
March 20, 2024 JUDGE
Poonam Sharma
Whether speaking/reasoned Yes
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