Bhaskar Publication And Allied ... vs Jai Hanuman Publicity Tit Complex ...
2022 Latest Caselaw 3478 MP

                                      1                            MCRC-60573-2021


           HIGH COURT OF MADHYA PRADESH
                  GWALIOR BENCH

                              SINGLE BENCH

                    JUSTICE G.S. AHLUWALIA

                         M.Cr.C. No. 60573 of 2021

     Bhaskar Publication and Allied Industries Private Limited,
                         Lashkar Gwalior
                               Vs.
                      Jai Hanuman Publicity

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Shri Suresh Agrawal, Counsel for applicant.
Shri Ankur Maheshwari, Counsel for respondent.
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Date of Hearing                       : 07.03.2022
Date of Judgment                      : 11th.03.2022
Approved for Reporting                :

                                 ORDER

11 - March, 2022 th

This application under Section 482 of CrPC has been filed

against the order dated 28.10.2021 passed by 15th Additional

Sessions Judge, Gwalior in Criminal Revision No.8407/2021, which

was dismissed as not maintainable.

2. The applicant had filed a complaint under Section 138 of

Negotiable Instruments Act. Since the documents were not supplied

by the applicant to the respondent, therefore, by order dated

19.03.2021, the JMFC, Gwalior in Complaint Case No.861/2018

dismissed the complaint on account of non-supply of legible copies 2 MCRC-60573-2021

of the documents to the respondent and the revision filed against the

said order was dismissed as not maintainable.

3. The necessary facts for disposal of the present application in

short are that the applicant had filed a complaint under Section 138 of

Negotiable Instruments Act against the respondent. The applicant was

required to supply the legible copies of the documents to the

respondent, but it is alleged that in spite of various opportunities, the

documents were not supplied and, accordingly, by order dated

19.03.2021, the Trial Court dismissed the complaint on the ground

that since the applicant has not supplied the copies of the documents

to the respondent, therefore, it appears that he is not interested in

prosecuting the complaint and, accordingly, the complaint was

dismissed for want of prosecution. However, it appears that on the

very same day, an application was filed by the applicant that file

containing the documents was misplaced. Today it has been re-

located and, therefore, he is ready and willing to supply the legible

copies of the documents, but the said prayer was rejected on the

ground that the complaint has also been dismissed for want of

prosecution and the Trial Magistrate has no jurisdiction to review its

own order. The revision which was filed by the applicant against the

order of dismissal was dismissed as not maintainable.

4. It is submitted by the counsel for the applicant that it is

incorrect to say that the applicant was not interested in prosecuting 3 MCRC-60573-2021

the complaint. In fact, it was the mistake on the part of his counsel.

Although for the first time the case was fixed on 11.06.2019 for

supply of the documents, but later on, because of lock-down on

account of Covid-19 Pandemic, counsel for the applicant misplaced

the file and could not supply the legible copies of the documents to

the respondent and on the date, when the complaint was dismissed for

want of prosecution, the applicant had made a prayer for grant of

opportunity to supply the documents, but in the light of the

provisions of Section 362 of CrPC, his prayer was not accepted. It is

submitted that it is well established principle of law that the litigant

should not suffer due to the fault on the part of the counsel. The

entire documents were already supplied by the applicant to its

counsel and, therefore, if the documents could not be supplied to the

respondent by the counsel, then the applicant should not suffer.

5. Per contra, counsel for the respondent has supported the

dismissal of the complaint for want of prosecution.

6. Heard the learned counsel for the parties.

7. The Trial Court in its order dated 19.03.2021 has stated that the

case was fixed for supply of documents to the respondent on

11.06.2019 and as many as 8 opportunities were given, but the

documents were not supplied and, therefore, it is clear that the

applicant is not interested in prosecuting the complaint and,

accordingly, it was dismissed. It is equally true that on the very same 4 MCRC-60573-2021

day, counsel for the applicant had moved an application seeking

permission to supply the documents, but in view of Section 362 of

CrPC, the said prayer was not accepted. It is well established

principle of law that the once an order has been passed by a Criminal

Court, then it has no jurisdiction to review its own order as held by

the Supreme Court in the case of Adalat Prasad vs. Rooplal Jindal

& Ors. reported in (2004) 7 SCC 338.

8. Now, the only question for consideration is as to whether

dismissal of the complaint on account of non-supply of document to

the respondent can be affirmed or not ?

9. It is true that it is the duty of the complainant to supply the

documents on the first date of the appearance of the respondent or the

same should have been sent along with the notice. Keeping the

complaint pending for no good reason cannot be appreciated. The

Court has to take a firm stand on this issue. However, the only silver

lining in favour of the applicant is that on the very day, when the

complaint was dismissed for want of prosecution, the counsel for the

applicant had moved an application pointing out that his office file

has been re-located and he is ready to supply the documents.

However, the said prayer was not entertained in the light of the bar

contained under Section 362 of CrPC. It is submitted by the counsel

for the applicant that since the complaint has been dismissed due to

the fault of the counsel, therefore, counsel for the applicant is ready 5 MCRC-60573-2021

to pay the cost for the restoration of the complaint.

10. In view of the facts and circumstances of the case as well as in

view of the submission made by the counsel for the applicant that he

himself is ready to pay the cost for not supplying the copy of the

documents to the respondent and for keeping complaint in suspended

animation by not supplying the documents, this Court is of the

considered opinion that a liberal view can be taken in favour of the

applicant.

11. Accordingly, the order dated 19.03.2021 passed by JMFC,

Gwalior in Complaint Case No.861/2018 is hereby set aside. One

opportunity is granted to the applicant to supply a complete set of

complaint along with the documents to the respondent. However, this

opportunity is subject to deposit of cost of Rs.20,000/- which shall be

a condition precedent for restoration of the complaint. The cost shall

be payable to the respondent.

12. The parties are directed to appear before the Trial Court on

25.03.2022 and on the said date, not only the applicant shall deposit

the cost of Rs.20,000/-, but shall also supply a complete set of

complaint with all documents to the respondent or if the counsel for

the respondent does not appear, then the counsel for the applicant

shall submit a complete set of documents in the Court itself for

supply of the same to the respondent or his counsel. It is made clear

that in case, if the applicant or his counsel fails to appear before the 6 MCRC-60573-2021

Trial Court on 25.03.2022 or fails to deposit the cost of Rs.20,000/-

or fails to supply complete set of the complaint to the respondent or

his counsel, then this order shall automatically lose its effect and the

order dated 19.03.2021 passed by the Trial Court shall stand revived.

13. With aforesaid observations, the application is finally disposed

of.

(G.S. Ahluwalia) Judge

Abhi ABHISHEK CHATURVEDI 2022.03.11 15:18:54 +05'30'