Punjab-Haryana High Court
Poonam Rani vs Kirandeep Kaur on 19 April, 2024
Neutral Citation No:=2024:PHHC:055088
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238 IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M-3325-2022
Date of Decision: 19.04.2024
Poonam Rani ...Petitioner
vs.
Kirandeep Kaur ...Respondent
Coram : Hon'ble Mr. Justice N.S.Shekhawat
Present : Mr. Akhil Ahuja, Advocate
for the petitioner.
Ms. Puja Chopra, Advocate
for the respondent.
***
N.S.Shekhawat J. (Oral)
1. The petitioner has filed the present petition under Section 482
Cr.P.C. with a prayer to set aside the impugned order dated 20.11.2019
(Annexure P-5), passed by the Court of Judicial Magistrate 1st Class, Bathinda,
whereby the complaint filed by the petitioner/complainant was dismissed for
want of prosecution under Section 256 Cr.P.C. and the respondent was acquitted
from the notice of accusation as served upon him.
2. Learned counsel for the petitioner submits that the respondent had
borrowed a sum of Rs.2.50 lakhs from the petitioner and executed a pro-note
and receipt in favour of the petitioner. However, the respondent had also issued
a cheque bearing No.931824 dated 15.09.2017 for a sum of Rs.2.50 lakhs
drawn on State Bank of India from her account No.55144336880 and
discharged her liability and took back the pro-note and receipt. On presentation
with his banker, the said cheque was dishonoured with the remarks "funds
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insufficient" and the petitioner filed a complaint under Section 138 of the
Negotiable Instruments Act (hereinafter referred to as the Act) before the Court
at Bathinda on 27.11.2017.
3. Vide order dated 28.11.2017, the respondent was summoned by the
trial Court. Ultimately, the notice of accusation was served on the respondent on
22.05.2018. Learned counsel for the petitioner contends that the husband of the
petitioner was an employee of State Bank of India and on 12.04.2018, he was
transferred from Chandigarh to Singapore for a foreign posting of 03 years. As
a result, the petitioner was burdened with the responsibilities of entire family as
her husband had shifted to Singapore. She had instructed her counsel to call her
in the trial Court, as and when her personal appearance was required. However,
her counsel assured that he was taking care of her case and she would be called.
In February, 2019, the petitioner wanted to go to Singapore to meet her husband
and also informed her counsel in this regard. The petitioner also returned to
India for a short Diwali Vacations along with her husband between 19.10.2019
to 28.10.2019. Again, learned counsel appearing before the trial Court informed
her that he was pursuing the matter and he would inform the petitioner in case
her personal presence was required. Later on, she requested to her relatives in
India to inquire about the status of the case and came to know about the
impugned order dated 20.11.2019 (Annexure P-5), whereby the complaint has
already been dismissed for want of prosecution. Even the petitioner wanted to
return to India, but she could not return due to outbreak of Covid-19 Pandemic
and she immediately filed a petition before this Court, after returning to India.
4. Learned counsel for the petitioner also relied upon the law laid
down by the Hon'ble Supreme Court in the matter of "Punjab State
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Warehousing Corporation, Faridkot vs Shree Durga Ji Traders and others",
2011(14) SCC 615, wherein the Hon'ble Supreme Court has held that if there is
miscarriage of justice, the availability of alternative remedy is not a bar to
exercise the inherent power of the High Court under Section 482 Cr.P.C. The
operative part of the judgment reads as under:-
"11. Bearing in mind the afore-stated legal position in regard to
the scope and width of the power of the High Court under Section
482 of the Code, we are of the opinion that the impugned decision
is clearly indefensible. As noted above, the High Court has rejected
the petition under Section 482 of the Code on the ground of
availability of an alternative remedy without considering the
seriousness of the nature of the offences and the fact that the Trial
Court had dismissed the complaint on a hyper technical ground
viz. since the complainant had been appearing in person, despite
order dated 16th April 1999, exempting him from personal
appearance, the said exemption order became redundant and the
complainant should have sought a fresh exemption from personal
appearance. We feel that such a view defies any logic. An order of
exemption from personal appearance continues to be in force till it
is revoked or recalled.
12. We are convinced that in the instant case, rejection of
appellant's petition under Section 482 of the Code has resulted in
miscarriage of justice. Availability of an alternative remedy of
filing an appeal is not an absolute bar in entertaining a petition
under Section 482 of the Code. As aforesaid, one of the
circumstances envisaged in the said Section, for exercise of
jurisdiction by the High Court is to secure the ends of justice.
Undoubtedly, the Trial Court had dismissed the complaint on a
technical ground and therefore, interests of justice required the
High Court to exercise its jurisdiction to set aside such an order so
that the Trial Court could proceed with the trial on merits.
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13. Resultantly, the appeal is allowed. The impugned judgment
as also the orders of the Chief Judicial Magistrate dated 18th
February 2003 and 9th November 2005 are set aside and the
complaint filed by the appellant is restored to the file of the Chief
Judicial Magistrate. The Chief Judicial Magistrate shall now
proceed with the trial after securing the presence of the accused."
5. On the other hand, learned counsel appearing on behalf of the
respondent submits that after the complaint was dismissed in default, the
respondent was acquitted of the notice of accusation and the complainant had
right to file an appeal under Section 378(4) Cr.P.C. Thus, the present petition is
not maintainable before this Court.
6. In the present case, from the pleadings of the parties, it is apparent
that the husband of the present petitioner had been transferred to Singapore by
State Bank of India on a foreign posting for a period of three years. In February
2019, she also shifted with her husband to Singapore and only came to India for
a short duration on Diwali in the year 2019. Thereafter, due to Covid-19
Pandemic, the petitioner could not visit India and in the meantime, the case was
dismissed for non-prosecution, due to non-appearance of the petitioner under
Section 256 Cr.P.C. In the present case, the petitioner has been able to show a
bona fide ground for non-appearance before the trial Court and the order of the
trial Court dismissing the case for non-prosecution seems to be a harsh decision.
In fact, instead of dismissing the case in a hurry, the Court should have issued a
notice to the counsel for the complainant/petitioner and the trial Court has
wrongly observed that the complainant did not intend to pursue the complaint.
Rather, it was apparent from the record that the petitioner was earlier appearing
before the trial Court.
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7. Still further, I find no force in the submissions made by learned
counsel for the respondent that at this stage, the petitioner should be relegated to
the remedy of filing of an appeal before this Court against the impugned order.
In fact, in the light of the ratio laid down by the Hon'ble Supreme Court in the
matter of Punjab State Warehousing Corporation, Faridkot (supra), it
would be appropriate to exercise suo moto inherent power under Section 482
Cr.P.C. to restore the complaint because at this stage. Issuing a direction or
granting permission to the complainant to file an appeal under Section 378(4)
Cr.P.C. along with an application under Section 14 of the Limitation Act will be
harsh, considering the fact that more than 2 years have lapsed after filing of the
present petition before this Court.
8. Consequently, it is held that the petitioner/complainant has been
able to show the bonafide ground for her non-appearance and the complaint is
liable to be restored to its original position for being decided on merits.
9. In view of the above discussion, the present petition is allowed and
the impugned order dated 20.11.2019 (Annexure P-5) is set aside and the
complaint dated 27.11.2017 (Annexure P-2) is ordered to be restored before the
trial Court.
10. The parties through their respective counsel are directed to appear
before the trial Court on or before 06.05.2024.
(N.S.SHEKHAWAT)
19.04.2024. JUDGE
hemlata
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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