Shri Thongambinoy Singh vs Smt. Hemam Asha Devi
2023 Latest Caselaw 220 Mani

         Digitally
         signed by
KABOR    KABORAMBA             IN THE HIGH COURT OF MANIPUR
AMBAM    M LARSON                        AT IMPHAL
         Date:
LARSON   2023.07.07
         13:57:35
         +05'30'                             Cril. Petn. No.55 of 2022


                 Shri ThongamBinoy Singh, aged about 55 years, S/o Th.
                 Shamungou Singh, a resident of SingjameiMayengbamLeikai,
                 P.O. & P.S. Singjamei, District - Imphal West, Manipur.

                                                                                   ....Petitioner/s
                                                       - Versus -
                 Smt.    Hemam        Asha    Devi,   aged about    50   years,    W/o
                 HemamShyamjai Singh, a resident of MoirangHemamLeikai,
                 District - Bishnupur, Manipur - 795133.

                                                                                  ...Respondent/s

BEFORE HON'BLE MR. JUSTICE A. GUNESHWAR SHARMA

For the Petitioner/s : Mr. AjoyPebam, Advocate Mr. Kh. Suraj, Advocate

For the Respondent/s : Mr. Anjan Prasad Sahu, Advocate Ms. Tania RK, Advocate

Date of Hearing : 09.06.2023

Date of Judgment & Order : 07.07.2023

JUDGMENT AND ORDER (CAV)

[1] By the present petition under Section 482 of Cr.P.C. the

petitioner has approached this Court for quashing/setting aside of the

impugned order dated 09.09.2022 passed by the Ld. Chief Judicial

Cril. Petn. No.55 of 2022 Page 1 Magistrate, Bishnupur in Cril.(Compliant)N.I. Act Case No.13 of 2019 and

remanding the case to be considered on merit.

[2] By the impugned order dated 09.09.2022, the Ld. Chief

Judicial Magistrate, Bishnupur dismissed the Cril. Compliant for dishonor of

cheque due to absence of the complainant and the case was dismissed for

non-prosecution and the accused was discharged.

[3] Heard Mr. AjoyPebam, learned counsel for the petitioner and

Mr. Anjan Prasad Sahu, learned counsel for the respondent.

[4] The main grounds taken in the present petition are:

i) the case was dismissed due to fault of the counsel;

ii) the Ld. Chief Judicial Magistrate, Bishnupur failed to comply the provisions of Section 142 (b) of the Negotiable Instrument Act, 1881;

iii) the Ld. Chief Judicial Magistrate, Bishnupur failed to issue notice to the petitioner/complainant before the next date.

[5] Mr. AjoyPebam, learned counsel for the petitioner relies upon

the judgment of Hon'ble Supreme Court in the case of Bindeshwari Prasad

Singh vs. Kali Singh reported as 1977 (1) SCC 57 and the judgment

ofHon'ble Delhi High Court in the case of J.K. International vs. State

reported as 2022 CrLJ 2601 to highlight that exercising revisional power or

inherent power under Section 482 of Cr.P.C. for dismissal of complaint can

be entertained. He also refers to the Law Commission Report No.233

Cril. Petn. No.55 of 2022 Page 2 submitted in August, 2009 whereby appropriate amendments and sections

249 and 256 of Cr.P.C. be incorporated by inserting provisions in lines of

the Order IX of CPC enabling the Criminal Court for restoration of the

complaints.

[6] Mr. AjoyPebam, learned counsel for the petitioner submits

that injustice will be caused to the petitioner/complainant if the matter is

not heard on merit and prayed that the impugned order be set aside and

the Ld. Chief Judicial Magistrate, Bishnupur be directed to decide the

matter on merit.

[7] Per contra, Mr. Anjan Prasad Sahu, learned counsel for the

respondent has raised the question of maintainability of the present

petition. It is submitted that upon dismissal of a compliant on non-

appearance of the complainant or on his death, it amounts to acquittal of

the accused, if the Court does not postpone/adjourn the case of the

hearing on some other day. He further submits that the proceedings of

dishonor of chequeis a summons case and the provisions of Section 256

Cr.P.C. will be applicable. He relies on the judgment of Karnataka High

Court in Cril. Petn. No.201462 of 2019 wherein it has been held that

dismissal of a complaint for cheque bounding amounts to acquittal and the

appropriate procedure is to file an appeal and it is submitted that the

petitioner be directed to file an appeal before appropriate forum.

[8] Heard the learned counsels for the parties.

Cril. Petn. No.55 of 2022                                             Page 3
 [9]             On perusal of the provisions of Section 256 of Cr.P.C., it is

seen that if the complainant does not appear on the date fixed, the Court

shall acquit the accused unless the hearing is adjourned to some other day.

Provisions of Section 256 Cr.P.C. is reproduced herein:

"256. Non-appearance or death of complaint. - (1) If the summons has been issued on complaint, and on the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainanst does not appear, the Magistrate shall, notwithstanding anything hereinbefore contained, acquit the accused, unless for some reason he thinks it proper to adjourn the hearing of the case to some other day."

[10] It is clear that dismissal of the complaint on non-appearance

of the complainant in a summons case amounts to acquittal of the accused

and as such, the proper procedure is to file an appeal before an appropriate

forum.

[11] Accordingly, the present petition is not maintainable. The

petitioner may approach appropriate forum for filing an appeal. The

petitioner shall have the benefit under Section 14 of the Limitation Act for

excluding the time taken in pursuing the present petition.

[12] With this observation, the petition under Section 482 Cr.P.C.

is disposed of. No costs.

                                                 JUDGE


FR/NFR

- Larson




Cril. Petn. No.55 of 2022                                              Page 4