A division judge bench of the Justice Vipin Sanghi and R.C. Khulbe of Uttarakhand HC has held that any dispute regarding the title of the land can only be adjudicated in a civil court and leave it open to the petitioner to approach the civil court to have his title disputes settled.
Facts:
The appellant who is an original complainant filed the criminal case under the provisions of the Negotiable Instruments Act, 1881 (NI Act) against the respondent No. 2 before the learned Court below, which came to be dismissed invoking the provisions of Section 256 of the Code as the complainant could not remain present before the trial Court on the date so fixed. The appellant filed this appeal under the provisions of Section 378 of the Criminal Procedure Code, 1973 (CrPC) against the judgment and order dated 29.09.2021 passed by the 19th Additional Chief Judicial Magistrate, Surat in Criminal Case No. 47662 of 2018, whereby, the same was dismissed for default, for want of non prosecution. The learned advocate for the appellant submitted that due to recent Covid-19 Pandemic, the appellant herein could not remain present on certain occasion and even otherwise, the case was pending for recording place of the accused person. It is further submitted that the appellant will not take any unnecessary adjournments in the proceedings before the trial Court. Accordingly, he requested to quash and set aside the impugned order and to restore the case and to hear the same on merits by the learned trial Court concerned.
Observations of the Court:
The court after hearing the arguments advanced and considering the facts and circumstances of the case on hand and also perusing the impugned order dated 29.09.2021 passed by the learned Magistrate observed that it appears that the matter in question was listed before the Court on the appointed date, wherein, since neither the appellant nor the advocate representing the appellant, could remain present, the same came to be dismissed for default, for want of non-prosecution under the provisions of Section 256 of the Code. As per the opinion of this court, the trial Court has taken a very hyper-technical view of the matter and dismissed the complaint, more particularly when nobody was present on behalf of the accused also, which is evident from the rojkam itself. Accordingly, the present appeal was allowed by setting aside the impugned order. However, considering the fact that no steps appear to have been taken for service to the respondent No. 2 – accused by the complainant, the Court deems it proper to allow this appeal with some exemplary cost.
Decision:
The present appeal succeeds and allowed. The judgment and order dated 29.09.2021 passed by the 19th Additional Chief Judicial Magistrate, Surat in Criminal Case No. 47662 of 2018, was quashed and set aside. The case was directed to be restored to its original file and stage, and the trial Court concerned shall deal with and decide the criminal case in question in accordance with law, on merits and without being influenced by any orders.
Case: Manish Jagmohan Jariwala v. State of Gujarat
Citation: CRIMINAL APPEAL NO. 1642 of 2021
Coram: Justice Ashok Kumar C. Joshi
Dated: 20.10.2022
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