Jitendra vs Sunil
2023 Latest Caselaw 13669 MP

                                                             1
                            IN    THE       HIGH COURT OF MADHYA PRADESH
                                                  AT INDORE
                                                     BEFORE
                                    HON'BLE SHRI JUSTICE PREM NARAYAN SINGH
                                               ON THE 22 nd OF AUGUST, 2023
                                            CRIMINAL APPEAL No. 7119 of 2022

                           BETWEEN:-
                           JITENDRA S/O SHRI SHANKARJI, AGED ABOUT 33
                           YEARS, OCCUPATION: AGRICULTURE VILLAGE DEVLA
                           TEHSIL MANAWAR DISTRICT DHAR (MADHYA
                           PRADESH)

                                                                                          .....APPELLANT
                           (BY SHRI PANKAJ SONI, ADVOCATE)

                           AND
                           1.    SUNIL S/O SHRI HANSRAJ JI JHAKRUD WALE,
                                 AGED ABOUT 38 YEARS, OCCUPATION: BUSINESS
                                 VILLAGE   JOTPUR   IN   THE   HOUSE    OF
                                 SHANKARLAL MUKATI TEHSIL MANAWAR
                                 DISTRICT DHAR (MADHYA PRADESH)

                           2.    STATE OF      MADHYA PRADESH            THROUGH
                                 DISTRICT       MAGISTRATE DHAR           (MADHYA
                                 PRADESH)

                                                                                       .....RESPONDENTS
                           (BY SHRI DURGESH SHARMA, ADVOCATE FOR THE RESPONDENT NO. 1)

                                 T h is appeal coming on for orders this day, t h e cou rt passed the
                           following:
                                                              ORDER

1. This revision petition has been filed under Section 378 of the Code of Criminal Procedure, 1973 being aggrieved by the order dated 22.06.2022 passed in SCNIA No. 97/2018 by the learned Judicial Magistrate First Class, Manawar, District-Dhar.

2. Brief facts of that case are that, the complainant and respondent No. 1 Signature Not Verified Signed by: VINDESH RAIKWAR Signing time: 23-08-2023 18:46:32

known to each other since long. In the month of March, 2018, the respondent No. 1 purchased the Dollar Chana of Rs.5,37,367/- from the complainant and paid Rs.1,37,367/- as cash in three parts and respondent No. 1 in order to discharge the liability for remaining amount handed over the cheque No. 027979 dated 11.05.2018 of Canara Bank, Branch-Manawar, District-Dhar amounting to Rs.4,00,000/-. The same was produced before the bank for encashment, but it was returned back on the ground of insufficient fund. Hence, the application was filed before the learned Judicial Magistrate First Class, Manawar, District- Dhar.

3. Learned counsel for the petitioner has submitted at the case filed

before the trial Court, was dismissed due to none appearance of both parties. It is also submitted that fixed for hearing on 22.06.2022 for recording of evidence of the complainant, but due to wrongly noted the date as 22.07.2022 instead of 22.06.2022, neither the counsel nor the complainant could appear before the learned trial Court and the learned trial Court, on the said date, dismissed the complaint on the ground of none-appearance. Learned counsel has also placed reliance on the judgment Right Services, Ratlam Vs. Chhotu Bhaiya Road Lines, Ratlam 2004 Criminal LJ 406, 2003 (3) MPHT 561. Para 19 of the said judgment is reproduced below :-

19. It is clear that, while dismissing the complaints in the absence of complainant, the Court should not pass the orders of dismissal of complaints and acquit the accused persons mechanically. The Court should consider the nature of the Signature Not Verified Signed by: VINDESH RAIKWAR Signing time: 23-08-2023 18:46:32

offence and the material produced by the complainant and also the stake which complainant is having in the matter. If on solitary hearing or hearings for one or the other reason if the complainant is not present, normally the Court should adjourn the case and should not arbitrarily exercise its discretion refusing the exemption.

Normally in complaint cases filed under Section 138 of the Act when a complaint is filed, the complainant is having a stake in the matter. Therefore, in the absence of the complainant, complaint should not be dismissed immediately. The Court should either adjourn the case or may proceed to hear the case under the proviso of Section 256 of the Code and if the complainant is represented by an Advocate or by officer conducting the prosecution or if the personal attendance of the complainant is not

necessary, the Court should either grant exemption, suo-motu or on the application of the advocate, as the order of dismissal of complainant operates as a final order.

Therefore, normally it should be passed after proper application of mind and exercise of Signature Not Verified Signed by: VINDESH RAIKWAR Signing time: 23-08-2023 18:46:32

judicial discretion.

4. Therefore, counsel for the petitioner prays for allowing the petition on the ground mentioned in the judgment.

5. Learned counsel for the respondent has also submitted that the petitioner was deliberately not attended the hearing in the trial Court. The case was fixed for hearing on 22.06.2022 for recording of evidence of the complainant, but on the said date, neither the complainant nor counsel for the complainant was present, even when the case was taken up five times. Hence, the present petition is liable to be dismissed.

6. Further, during the course of arguments, learned counsel for both the parties agreed and submitted that the matter should be heard and substantially decided, however, substantive cost may be imposed on complainant for his lapses.

7. In view of aforesaid, this petition is allowed by quashing the order of learned trial Court regarding dismissal of the case on the ground of none- appearance, subject to depositing the cost of Rs.10,000/- by the petitioner within a period of 15 days from today in favour of the respondent before the Trial Court, the order of the trial Court dated 22.06.2022, is hereby set aside and the matter is remanded back to the Trial Court with a direction that after providing opportunity of hearing to the petitioner the trial Court shall decide the case on merits. If the complainant fails to comply with the order of depositing cost, this order shall stand automatically dismissed without further reference to this Court and the order dated 22.06.2022 shall become effective.

8. In view of the aforesaid observation, the order of the learned trial Court is hereby set aside and the matter is remitted back to the Trial Court for Signature Not Verified Signed by: VINDESH RAIKWAR Signing time: 23-08-2023 18:46:32

deciding afresh after giving opportunity of hearing to both the parties in accordance with law. Both the parties are directed appear before the concerned trial Court on 08.09.2023.

9. Accordingly, the petition stands disposed of.

10.A copy of this order be sent to concerned trial for necessary compliance.

(PREM NARAYAN SINGH) JUDGE Vindesh

Signature Not Verified Signed by: VINDESH RAIKWAR Signing time: 23-08-2023 18:46:32