Madhya Pradesh High Court

Shriram vs Rahul on 20 July, 2023

Author: Anil Verma

                                                  1


       IN THE HIGH COURT OF MADHYA PRADESH
                                       AT INDORE
                                           BEFORE
                  HON'BLE SHRI JUSTICE ANIL VERMA
                             ON THE 20th OF JULY, 2023
                      CRIMINAL APPEAL NO. 701 of 2023

  BETWEEN:-
  SHRIRAM S/O KESHARSINGH BAROD
  R/O: LOHAR PATTI, INDRA MARG, DEPALPUR,
  DISTRICT INDORE (M.P.)
                                                                                .....APPELLANT
  (BY SHRI AMAN MOURYA - ADVOCATE)

  AND
  RAHUL S/O DHARA SINGH JAAT
  R/O: ARIHANT COLONY, TEHSIL ROAD,
  DEPALPUR, DISTT. INDORE (M.P.)
                                                                             .....RESPONDENT
  (BY SHRI NILESH SHARMA - ADVOCATE)

  -----------------------------------------------------------------------------------------------------
      This appeal coming on for admission this day, the court passed the
following:


                                            ORDER

1/ This appeal has been filed by the appellant under Section 378 of Cr.P.C. against the impugned order dated 10.12.2021 passed by the JMFC, Depalpur, District Indore in Criminal Case No.51/2019, by which the trial Court has dismissed the private complaint in absence of the complainant having filed under Section 138 of the Negotiable Instruments Act (in short "NI Act")

2/ The case of the appellant in nutshell is that accused has issued one cheque no.217354 dated 2.3.2019 of amount Rs.2,00,000/- of the State Bank of India, Branch Depalpur, District Indore in favour of the appellant/complainant as payment of loan amount with the assurance that upon presentation in his bank, the complainant would get the cheque amount from the bank. Therefore, from the assurance given by the accused, the appellant/complainant presented the said cheque in his bank for encashment but the said cheque was dishonoured by his bank with the remark "Funds Insufficient" on 7.3.2019. Thereafter, the appellant has sent a demand notice through his advocate and the said notice was duly served upon the accused but he did not repay the cheque amount within time. Therefore, the appellant has presented the said complaint case before the learned trial Court.

3/ On 10.12.2021 the case was pending before the trial Court, but on the same day nobody has marked presence on behalf of the complainant, therefore, learned trial Court has dismissed the complaint filed by the appellant/complainant in default. Being aggrieved by the aforesaid order, the appellant has preferred this appeal.

4/ Learned counsel for the appellant submits that the impugned order passed by the trial Court is contrary to the law and facts. The trial court has not considered that the complainant is bonafide as he was not informed about the presence in the case on the scheduled date i.e. 10.12.2021 since there was call of advocates to abstain from court work. Therefore, counsel and the complainant could not appear before the trial Court. The complainant has to suffer a huge economic

loss without his fault. It shall be in the interest of justice that complainant be given proper opportunity to contest his case. Hence, he prays that the impugned order dated 10.12.2021 passed by the trial Court be quashed and the private complaint be restored to its original number.

5/ Per contra, learned counsel for the respondent submits that the trial Court has dismissed the complaint filed by the appellant/complainant in default and the accused was not acquitted, therefore, this appeal against the acquittal is not maintainable. He has placed reliance upon the judgment of the coordinate bench of this Court in the case of Santosh Kumar Vs. Jaidka Gas Agency reported in 2016(4) MPLJ 50.

6/ Counsel for both the parties heard at length and perused the record.

7/ From perusal of the impugned order, it appears that on 10.12.2021 case of the appellant/complainant has been dismissed in default in absence of the complainant and his counsel. The trial Court has not acquitted the accused. The Kerala High Court in the case of Krishnankutty Vs. Ramani reported in AIROnline 2021 Ker 1110 has held that "on the ground of non appearance of the complainant or death of complainant, after appearance of the accused on service of summons or otherwise, amounts to acquittal of accused under Section 256 of Cr.P.C. and remedy available to the complainant is to file appeal under Section 378(4) of Cr.P.C." Therefore, in view of the law laid down by the Kerala High Court in the aforesaid case, the dismissal of

the complaint in default also amounts to acquittal of the accused under Section 256 of Cr.P.C.

8/ The coordinate bench of this Court in the case of Santosh Kumar (supra) has held as under:-

"7. Thus regardless of the fact, whether the order of acquittal is recorded in the trial or in the appeal, a special leave to appeal against acquittal, shall be maintainable in a case instituted on a private complaint, view of the expression "from an original or appellate order of acquittal passed by any Court other than a High Court" used in sub-section (1) and expression "such an order of acquittal" used in sub-section (4) of section 378.

8. Since an appeal against acquittal is so maintainable, in view of sub-section (4) of section 401 of the Criminal Procedure Code, no revision would be maintainable."

9/ The coordinate bench of this Court in the case of Right Services Ratlam Vs. Chhotu Bhaiya Road Lines, Ratlam and another reported in 2003(3) MPHT 561 has also observed that:-

"12. It has been held by the Supreme Court in relation to Section-256 of the Code in the case of Mohd. Azeem v. A. Venkatesh and Anr., reported in (2002) 7 SCC 726, that on one singular default in appearance on the part of the complainant, the dismissal of the complaint under Section 138 of the Negotiable Instruments Act is not proper. The cause shown by the complainant of his absence that he had wrongly noted the date should not have been disbelieved and it should have been held to be a valid ground for restoration of the complaint. The Supreme Court has further held that the learned Magistrate and the High Court had adopted a very strict and unjust attitude resulting in failure of justice and the Supreme Court has set aside the orders and restored the complaint and directed the

Magistrate to proceed with the trial of the case after issuance of formal notices to both the parties."

10/ The Calcutta High Court in the case of Govinda Chandra Bag v. Radhakanta Bad and Ors., reported in 1987 Cr.LJ 477, has held as under:--

"Summons case--Section 256--Acquittal of accused for non-appearance of complaint--Complainant remaining present on all dates of hearing--Remaining absent only on date of hearing arguments due to certain unavoidable circumstances--Date of hearing arguments was also date fixed for report from police against allegation made by complainant against accused-- Acquittal of accused on ground that complainant was not eager to proceed with case held, was not proper."

11/ In the instant case from perusal of the impugned order, it is clear that the trial Court has already taken cognizance in the matter and also summoned the respondent/accused and he has also been enlarged on bail, therefore, when on a singular day the complainant was absent, in the absence of the complainant normally the Court should have adjourned the case instead of dismissing it and acquitting the accused person. According to this Court looking to the nature of offence, the trial Court has not exercised its discretion properly and judicially.

12/ In the result, this appeal under Section 378 of Cr.P.C. is allowed and the impugned order dated 10.12.2021 passed by the trial Court in Criminal Case No.51/2019 is hereby set aside. The private complaint filed by the appellant/complainant is restored to its original

number and the trial Court is directed to proceed with the trial of the case in accordance with law.

13/ Let a copy of this order be sent to the trial Court immediately along with the record.

Certified copy as per rules.

(ANIL VERMA) JUDGE Trilok/-