Madhya Pradesh High Court

Mahendra vs Roopsingh on 5 July, 2023

Author: Anil Verma

                                                  1


       IN THE HIGH COURT OF MADHYA PRADESH
                                       AT INDORE
                                           BEFORE
                  HON'BLE SHRI JUSTICE ANIL VERMA
                             ON THE 5th OF JULY, 2023
              MISC. CRIMINAL CASE NO. No. 50480 of 2022

  BETWEEN:-
  MAHENDRA S/O NARENDRA JOSHI
  AGED ABOUT 36 YEARS,
  OCCUPATION: SERVICE,
  R/O: SONKATCH, DISTRICT DEWAS (M.P.)
                                                                               .....PETITIONER
  (BY MS. DEEPIKA RATHI - ADVOCATE)

  AND
  ROOPSINGH S/O MANSINGH,
  R/O: VILLAGE AUAD, TEHSIL SONKATCH,
  DISTRICT DEWAS (M.P.)
                                                                             .....RESPONDENT
  -----------------------------------------------------------------------------------------------------
       This application coming on for admission this day, the court passed
the following:
       From perusal of the impugned order, it appears that notice was not
issued to the respondent before the trial Court at the time of passing of the
impugned order, therefore, no need to issue notice to the respondent.


                                    ORDER

1/ This petition under Section 482 of Cr.P.C. has been filed by the petitioner for restoration of complaint No. UNCR/13/2022 filed

under Section 138 of the Negotiable Instruments Act, 1881 before the JMFC, Sonkatch, District Dewas (M.P.).

2/ The brief facts of the case are that petitioner has filed an application under Section 138 of the Negotiable Instruments Act. Since the petitioner has not paid the court fees despite 13 adjournments, therefore, vide order dated 30.7.2022 the JMFC, Sonkatch, District Dewas in unregistered case No.13/2022 dismissed the complaint on account of non payment of the court fees and also in absence of the petitioner. Therefore, this petition has been filed before this Court.

3/ Learned counsel for the petitioner contended that the petitioner is working very hard for his livelihood and he will have to suffer a huge loss if he cannot recover such amount of Rs.2,60,000/- from the respondent. The impugned order passed by the trial Court is very harsh and the petitioner should not suffer due to the mistake done by his counsel. Hence, the order passed by the trial Court be set aside and the complaint bearing No. UNCR/13/2022 be restored to its original number filed under Section 138 of the Negotiable Instruments Act before the JMFC, Sonkatch, District Dewas.

4/ Learned counsel for the petitioner has placed reliance on the judgment of Punjab and Haryana High Court in Omprakash Vs. M/s Golden Forest India Ltd. and others, 2008(4) R.C.R. (Cr.) 445, in which it held as under:-

"4. This Court while considering an identical issue in Criminal Misc. No.36522-M of 2006 (Purushotam Mantri Vs. Vinod Tandon alias Hari Nath Tandon) vide judgment dated January 30, 2008 opined as under:-

"Learned counsel for the petitioner did not dispute that application filed by the petitioner before the Court below for recalling the order was not maintainable and accordingly the same was rightly dismissed by the Court below. However, submission is that this Court under Section 482 of the Code can certainly direct restoration of the complaint, which was dismissed in default if sufficient reason is found for his non appearance on the date fixed. For the purpose he has relied upon the observations made by this Court in Jitender Bajaj Vs. State (U.T. Chandigarh) and Ors. 2005 Crl. L.J. 3136, which are reproduced below:-

"....... When the Magistrate, in a summon case, has dismissed the complaint and acquitted the accused due to absence of the complaint on the day of hearing, he cannot later on restore the complaint and set aside the order of acquittal, even if the complaint shows very good reasons for his failure to be present on the day of dismissal of the complaint. In such situation, the only remedy available with the complainant is to file appeal or revision against such order or petition under Section 482 of the Code before this Court for setting aside the said order of dismissal of the complaint and acquittal of the accused on the ground that in the given facts and circumstances, the dismissal of the complaint and acquittal of the accused was not justified or there were sufficient reasons for non appearance of the complainant before the Court on the date fixed, or the Magistrate has not properly exercised his discretion while not adjourning the complaint and dismissing the same."

5/ The Delhi High Court in Ambassador Cards Pvt. Ltd. Vs. State & Anr., 2009 (1) DCR 91 has held as under:-

"Having heard learned counsel for the parties and taking into consideration that great prejudice shall be caused to the complainant-appellant if his complaint goes undefended, particularly when the amount involved in this case is about Rs.4,27,272/-, therefore, in the interest of justice the appeal is allowed, resulting in restoration of the complaint to its original number and position."

6/ The Punjab & Haryana High Court in the case of Nambhi Raj vs. Adarsh Diwan, 2004(2) DCR 268 where petition under Section 482 of Cr.P.C. has been filed for quashing order dated 13.11.2000 passed by the Judicial Magistrate First Class restoring the complaint of the respondent to its original number and the order dated 24.9.2000 passed by the ASJ upholding the order of restoration of the Magistrate, has held as under:-

"After hearing the learned counsel and perusing the aforementioned judgments, I am of the considered view that the order dated 13.11.2000 passed by the Magistrate restoring the complaint has been upheld by the Additional Sessions Judge and it shall now be deemed that the order dismissing the complaint passed on 4.10.2000 has been set aside by the Additional Sessions Judge. Therefore, it would be extreme technicality that no revision was filed by the complainant and the Magistrate has no jurisdiction to restore the complaint. Moreover, the second revision by the petitioner would not be competent by invoking Section

482 Cr.P.C. Therefore, there is no ground to interfere and the petition is liable to be dismissed."

7/ On going through the complaint filed by the petitioner before the JMFC, Sonkatch, District Dewas, prima facie it appears that the respondent has issued a Cheque of Rs.2,60,000/- in favour of the applicant, which was dishonoured and after giving the notice as provided under the Act, present petitioner has filed the complaint which was dismissed due to the non payment of the court fee. There is no provision in the Cr.P.C. for restoration of the complaint but if the complainant will not get a chance to contest his case, he will suffer irreparable loss because the Cheque of Rs.2,60,000/- was issued in the year 2019.

8/ In view of the aforesaid, in the interest of justice by exercising the inherent powers of this Court under Section 482 of Cr.P.C., this Court deems it fit to allow the petition. Accordingly this M.Cr.C. is allowed and the impugned order dated 30.7.2022 passed by the JMFC, Sonkatch, District Dewas is set aside, and the trial Court is directed to restore the aforesaid complaint and proceed further.

Certified copy as per rules.

(ANIL VERMA) JUDGE Trilok/-