Cholamandlam Investment And ... vs Avat Ram Sahu
2022 Latest Caselaw 6950 Chatt

                                   1

                                                                NAFR


         HIGH COURT OF CHHATTISGARH, BILASPUR
                       CRMP No. 1877 of 2022

    Cholamandlam Investment and Finance Company Ltd.
     Through: Ramavtar Singh, S/o Shri Ram Singh, Aged About
     37 Years, Senior Associate Legal Coordination (Aam
     Mukhtyar) Chouhan State, Near Mourya Talkies, Bhilai
     Nagar, Police Station Supela, Tahsil Durg, District- Durg,
     Chhattisgarh.
                                                       ---- Petitioner
                               Versus
      Avat Ram Sahu, S/o Jeevrakhan, Aged About 35 Years, R/o
       Village Dhaneli, Tahsil Gurur, Police Station Gurur, Pin
       Code-491227, District : Balod, Chhattisgarh.
                                                     ---- Respondent

For Petitioner : Mr. Punit Ruparel, Adv.

Hon'ble Smt. Justice Rajani Dubey Order on Board 18.11.2022

1. Heard on I.A. No.01/2022 which is an application for

condonation of delay of 10 days in filing the instant

petition.

2. On due consideration and the reasons mentioned therein,

the same stands allowed and delay of 10 days in filing the

instant petition is hereby condoned.

3. Also heard on application under Section 378(4) of Cr.P.C.

for grant of special leave to file an appeal.

4. On due consideration, leave is granted.

5. This petition is preferred against the judgment of acquittal

dated 30.06.2022 passed by the learned Judicial Magistrate

First Class, Durg, District- Durg (C.G.), in Criminal

Case No. RCC/4812/2016 as well as against the order of

Sessions Judge, Durg, District- Durg (C.G.) in Criminal

Revision No. 149/2022 dated 06.09.2022, whereas the

learned trial Court has acquitted the respondent/accused

while dismissing the case for want of prosecution.

6. This petition is nothing but restoration of complaint case

which is dismissed in default. Therefore, appearance of the

respondent is not compulsory because he will get

opportunity of hearing before the trial Court.

7. In the matter of Associated Cement Co. Ltd. Vs.

Keshvanand reported in (1998) 1 SCC 687, Hon'ble

the Apex Court held as under:-

"18. Reading the Section in its entirety would reveal that two constraints are imposed on the court for exercising the power under the Section. First is, if the court thinks that in a situation it is proper to adjourn the hearing then the Magistrate shall not acquit the accused. Second is, when the Magistrate considers that personal attendance of the complainant is not necessary on that day the Magistrate has the power to dispense with his attendance and proceed with the case. When the Court notices that the complainant is absent on a particular day the court must consider whether personal attendance of the complainant is essential on that day for progress of the case and also whether the situation does not justify the case being adjourned to another date due to any other reason. If the situation does not justify the case being adjourned the Court is free to dismiss the complaint and acquit the accused. But if the presence of the complainant on that day was quite unnecessary then resorting to the step of axing down the complaint may not be a proper exercise of the power envisaged in the section. The discretion must, therefore be exercised judicially and fairly without impairing the cause of administration of criminal justice."

8. Again, in the matter of Mohd. Azeem Vs. A. Venkatesh

& another reported in (2002) 7 SCC 726, Hon'ble the

Apex Court held that in a proceeding under the Act, 1881,

the single default in appearance on the part of the

complainant, the dismissal of the complaint case is not

proper, legal and justified.

9. Dismissal of the complaint case was not the only option

before the trial Court. The trial Court could have adjourned

the case to some other date as per the provisions of

Section 256(1) CrPC. The Court should have provided

opportunity to pay process fee for appearance of the

respondent, it should not have sent to record room without

deciding issues between the parties but that is not done in

the present case, therefore, the order passed by the trial

Court is not sustainable.

10. Accordingly, orders passed by both the courts below is set

aside allowing the petition. The trial Court is directed to

proceed with the case after providing opportunity to the

petitioner to pay process fee and after appearance of the

respondent, the case shall be decided on merit.

11. The petitioner is directed to appear before the trial Court

on 9th January, 2023 for further proceedings.

Sd/-

(Rajani Dubey) Judge

Ruchi