Eicher Motors Limited vs Mrs Pushpa Chand
2009 Latest Caselaw 2995 Del

*              THE HIGH COURT OF DELHI AT NEW DELHI

%                          Judgment Reserved on: 31.07.2009
                           Judgment delivered on: 04.08.2009

                         Crl. L.P. 201/2006

EICHER MOTORS LTD.                          ..... Appellant

                               versus

MRS PUSHPA CHAND                           ..... Respondent

Advocates who appeared in this case:

For the Appellant             : Mr. Apporve Karal, Advocate
For the Respondent            :None

CORAM :-
HON'BLE MR JUSTICE RAJIV SHAKDHER

1.     Whether the Reporters of local papers may
       be allowed to see the judgment ?
2.     To be referred to Reporters or not ?   Yes
3.     Whether the judgment should be reported
       in the Digest ?                       Yes

RAJIV SHAKDHER, J

1.     Leave granted.

2. Briefly by this petition the order dated 20.04.2006 passed

by the learned Magistrate in complaint no. 1559/1/2003 is sought

to be assailed. By the said order the learned Magistrate has

dismissed the complaint for non-prosecution and consequently,

acquitted the accused. The appellant being aggrieved has

preferred the present petition to this Court.

3. The facts and circumstances in the background of which

the present appeal has been instituted is briefly set out

hereinafter:

3.1 The respondent being desirous of purchasing a vehicle,

approached the Centurian Bank Ltd. (in short the 'Bank'),

through the appellant. The appellant at the relevant time was the

constituted attorney for granting such like loans. For the said

purpose a tripartite agreement bearing No. NE1386/03/2001

dated 27.03.2001 (in short 'tripartite agreement') was executed

amongst the appellant, the Bank and the respondent. It is not

disputed that the loan was disbursed to the respondent, who

purchased a vehicle bearing model no. 10.70HSD. For the

purposes of repaying of the said loan, the respondent had issued

cheques. One such cheque drawn on the Nainital Bank Ltd., Br.

Raninbagh, Distt, Nainital (UA) bearing No. 434471, dated

05.06.2003, in the sum of Rs 3,40,269/-, was presented by the

appellant for encashment to its banker. The cheque was

returned by the respondent's banker vide memo dated

18.06.2003. Consequently, the appellant triggered the provisions

of Section 138 of the Negotiable Instruments Act, 1881 (in short

the 'N.I. Act') by issuing a statutory notice of demand dated

18.06.2003. This was followed by institution of criminal

complaint on 27.08.2003. In the criminal complaint along with

the respondent two other persons, who stood as guarantors, have

been arrayed as accused Nos. 2 & 3. Alongwith the criminal

complaint an affidavit by way of evidence was also filed by the

appellant.

3.2 On 28.08.2003, the learned Magistrate after perusing the

documents on record, the affidavit of evidence and upon hearing

submissions on behalf of the complainant directed registration of

the complaint and issuance of summons to the three (3) accused.

The matter was posted for further proceedings on 06.04.2004.

3.3 On 06.04.2004, fresh summons were issued to the accused,

as the earlier summons had not been returned.

3.4 The matter was posted on 19.04.2005. On 19.04.2005, the

complainant was not present, however, the accused no. 1 i.e.,

Mrs Pushpa Chand was present alongwith her counsel. She was

admitted to bail on furnishing a personal bond of Rs 10,000/- and

the surety of a like amount. Fresh summons were issued, in

respect of, accused no. 2 and 3 as they were 'absent'.

3.5 The matter was posted to 28.08.2005. The matter was,

however, taken up on 29.08.2005, as 28.08.2005 was declared a

holiday on account of 'Janmashtmi'. On 29.08.2005, there was

once again no appearance on behalf of the complainant. Accused

no. 1, Mrs Pushpa Chand was also absent, however, an

application for exemption from personal appearance was moved

by her counsel on the ground that she was suffering from a viral

fever. The learned Magistrate was pleased to grant her

exemption from appearance for that day. In the bail application

filed by accused no. 3, the bail was granted on his furnishing a

personal bond of Rs 10,000/- with the local surety of a like

amount. Fresh summons were issued in respect of accused no. 2.

The matter was posted to 20.04.2006.

3.6 On 20.04.2006, the case in the first instance was called out

in the morning session, at that time there was no appearance on

behalf of the complainant, while accused no. 1 and 3 were

present with their counsel. Accused no. 2 was still unserved.

The learned Magistrate noted that process fee had not been filed.

The matter was, however, kept back for 1 p.m. There was no

appearance even at 1 p.m. The matter was called out once again

post-lunch at 2:35 p.m., however, the same position obtained.

Consequently, the learned Magistrate, on account of the fact that

no process fee had been filed despite orders dated 29.08.2005,

dismissed the complaint for non-prosecution and proceeded to

acquit the accused.

4. It is important to note that a perusal of the order sheets of

this court would show that the counsel for the respondent, in a

sense is guilty of the same lackadaisical approach which the

appellant adopted in the trial court in prosecuting the case.

There was no appearance on behalf of the respondent on the

following dates, i.e., on 29.05.2008, 24.09.2008, 05.03.2009,

29.07.2009 & 31.07.2009. On 31.07.2009 even after a pass over

there was no appearance on behalf of respondent.

5. I have, however, perused the reply filed by the respondent

in this Court. A perusal of the reply would show that while the

respondent has admitted that a tripartite agreement dated

27.03.2001 was entered into between appellant, Centurian Bank

and the respondent, the said agreement was terminated and

pursuant thereto vehicle had been seized on 10.07.2002. The

respondent has in the reply admitted that she was required to

pay monthly instalment of Rs 13,593/- in cash and for the

purposes of 'security' she had issued six blank cheques. It is also

contended that the legal notice dated 18.07.2003 issued by the

appellant was replied by the respondent vide her advocate's

response dated 24.07.2003. The respondent has averred that

despite the order of the learned Magistrate dated 29.08.2005

directing issuance of fresh notice to accused No.2 upon filing

fresh process fee, since process fee was not deposited by the

appellant, the learned Magistrate had rightly dismissed the

complaint on 20.04.2006, as the appellant was not interested in

prosecuting the case.

6. Before me the learned counsel for the appellant has

submitted that on 19.04.2005 the authorized representative of

the appellant alongwith the counsel reached the court late as

they were to attend to other matters in court and by the time

they reached the court, orders had already been passed granting

bail to accused no. 1 and issuance of fresh summons to accused

no. 3. As regards non-appearance on 29.08.2005, the learned

counsel submitted that the counsel for the appellant in the court

below, due to a personal difficulty, was unable to attend the court

which, however, could be conveyed to the authorized

representative at a point in time which was close to the time for

court proceedings, resulting in the authorized representative

reaching late, by which time once again orders had been passed.

It is submitted that at the time of noting the next date, the

authorized representative had inadvertently recorded a wrong

date, i.e., 12.07.2006 as against 20.04.2006, which was the

correct date. The incorrect date was communicated to the

counsel for the appellant. He submitted that it is this inadvertent

mistake which resulted in the appellant-complainant's non

appearance on 20.04.2006, and the delay in filing the process fee

for summoning the accused no. 2.

7. After hearing the learned counsel for the appellant and

after perusing the record it is quite evident that the complainant

undoubtedly has been lackadaisical in prosecuting the complaint.

However, taking into account the fact that the complaint was still

at a preliminary stage of effecting service on accused No.2, the

learned Magistrate while exercising his power under Section 256

of the Code of Criminal Procedure, 1973 (in short the 'Cr.P.C.')

could have avoided the extreme option of dismissing the

complaint for non-prosecution. The reason given by the appellant

that the date fixed for further proceedings in court had been

wrongly recorded and hence, primary cause of absence of the

authorised representative and default in filing the process fee,

appears to be genuine or at least cannot be outrightly

disbelieved. The power available to the Magistrate under Section

256 of the Cr.P.C. to dismiss a complaint and acquit the accused,

is to be exercised keeping in mind the purpose for which it is

conferred. The width and scope of the power is explained by the

Supreme Court in the case of Associated Cement Co. Ltd vs

keshvanand (1998) 1 SCC 687. Justice K.T. Thomas (as he then

was) speaking for the court has observed that the purpose of

conferring power on the Magistrate under Section 256 of the

Cr.P.C. is to deter dilatory tactics on the part of the complainant

once he sets in motion criminal proceeding by instituting a

complaint. The purpose being that accused is perforce required

to attend court proceedings on dates fixed by the court and is

thus, put to harassment if the complainant does not turn up in

the court on dates when his presence is necessary. This

provision affords protection to the accused against such tactics

being adopted by the complainant. This, however, does not mean

that if the complainant is absent the court is duty bound to acquit

the accused. If the situation mandates the Magistrate has the

power to adjourn the hearing. On the other hand, if the

Magistrate considers that the personal appearance of the

complainant is not necessary it has the power to dispense with

his attendance and proceed with the case. It is for the court to

consider whether the presence of the complainant is necessary

for the progress of the case on the day when the complainant is

absent or the situation is such that the case be adjourned to

another date. If the situation mandates that there is no reason to

adjourn the case, the Magistrate is free to dismiss the complaint

and acquit the accused. The ratio of Associated Cement (supra)

has been followed in a later judgment of the Supreme Court in

the case entitled S. Anand Vs. Vasumathi Chandrasekar

(2008) 4 SCC 67.

8. Applying the principle enunciated by the Supreme Court in

Associated Cement and S. Anand (supra) in my view since

service had not been effected on accused no. 2 the learned

Magistrate could have adjourned the case for effecting the

service on accused no. 2 especially in the circumstance that on

the previous date there was no default on the part of the

complainant, in depositing the necessary process fee for effecting

service on the accused in the case. In my view it is quite possible

that the authorized representative of the appellant wrongly noted

the date as 12.07.2006, as against the correct date, that is,

20.04.2006 and hence, delayed the deposit of process fee for

issuing of summons to accused no. 2.

9. Taking into account the aforesaid facts and circumstances

and the submissions made before me, the appeal is allowed and

the impugned order dated 20.04.2006 is set aside. The complaint

is restored to its original number. The learned Magistrate shall

commence further proceedings from the stage at which the case

was prior to the date when the impugned order was passed.

Given the fact that the complaint is of 2003, the learned

Magistrate shall take steps to expedite the proceedings. Parties

shall appear before the Magistrate for appropriate orders on

17.08.2009.

10. Accordingly, the petition is disposed of.

RAJIV SHAKDHER, J

August 04, 2009 kk