Punjab-Haryana High Court
M/S Pawan Trading Company Through Its ... vs Lr International Pvt. Ltd. And Ors on 19 April, 2024
Neutral Citation No:=2024:PHHC:053353
2024:PHHC:053353
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
230
CRM-M-54541-2021
Date of decision: 19.04.2024
M/S PAWAN TRADING COMPANY
....Petitioner
Versus
L.R.INTERNATIONAL PVT.LTD.AND OTHERS
..Respondents
CORAM: HON'BLE MR. JUSTICE KULDEEP TIWARI
Present : Mr. P.K.Ganga, Advocate
for the petitioner.
KULDEEP TIWARI. J.(Oral)
1. The instant petition has been filed under Section 482 of the
Cr.P.C., is directed against the order dated 01.12.2021 (Annexure P-6),
rendered by learned Judicial Magistrate 1" Class, Sirsa, whereby, merely
owing to the complainant (petitioner herein) remaining unrepresented, the
complaint bearing No.NI/1191/17, dated 31.10.2017, instituted by him
under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter
referred to as the 'N.I. Act'), was dismissed for want of prosecution.
2. Since the principal grievance canvassed by the petitioner
herein, hinges upon dismissal of his complaint, merely owing to him
remaining unrepresented before the learned Magistrate concerned,
therefore, this Court deems it inessential to augment this remand order
with factual matrix of the present case, and consequently, proceeds to pen
down an opinion upon the grievance (supra).
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3. The learned counsel for the petitioner submits that, prior to
the dismissal of complaint (supra) for want of prosecution, the petitioner
and his counsel had been regularly appearing before the learned
Magistrate concerned. The defence proffered by the petitioner behind him
remaining unrepresented before the learned Magistrate concerned, is that,
owing to some communication gap his counsel had inadvertently noted
down wrong date of hearing. Therefore, there was no mala fide intention
on the part of the petitioner for not appearing before the learned
Magistrate concerned, rather his absence was bona fide.
4. To substantiate his argument, he further relies upon a
judgment passed by a co-ordinate Bench of this Court in Harinder Singh
vs. Rajinder Singh, 2023(4) Law Herald 3056.
5 This Court has heard the learned counsel for the petitioner,
and also perused the entire record.
6. For the sake of convenience and ready reference, the
impugned order dated 01.12.2021, is reproduced hereinafter:-
"Matter taken up again. It is 3.50 p.m. Case has been called again
thrice but none has appeared on behalf of the complainant. The
entire cause list of the day has been exhausted. None has appeared
on behalf of complainant. Accordingly, the present complaint
stands dismissed for want of prosecution. File after due completion
and registration be consigned to records"
7. The inference, as becomes generated from the record is that,
the petitioner could have, in no way, derived any benefit from his absence
in the complaint (supra), rather it would be him, whose rights would be
and have indeed been adversely affected in such circumstances. The
absence of the petitioner/complainant or his counsel cannot be enure to
the benefit of the respondents/accused. This inference garners strength
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from the fact that, there is nothing available on the record, which may
even remotely suggest that there was any mala fide intention on the part
of the petitioner behind his absence from the proceedings. Moreover,
since the petitioner had remained unrepresented only on one hearing,
therefore, the learned Magistrate concerned, instead of straightway
adopting such a harsh approach of dismissing the complaint (supra) for
want of prosecution, ought to have exercised some leniency, inasmuch as,
mere absence of the complainant on one date, cannot constitute the
bedrock for dismissal of the complaint.
8. Gainful reference in the above regard can be made to
Purushotam Mantri v. Vinod Tandon alias Hari Nath Tandon,
2008(3) Punjab Law Reporter 595 (P&H), wherein, it has been
observed that
"..it would be too harsh on the petitioner to non-suit him merely
for his non- appearance on one date...."
9. Furthermore, reference can also be made to case titled as
"Narender Parashar Versus Jagbir Singh", Law Finder Doc Id #
192748, wherein, a Co-ordinate Bench of this Court, while dealing with
an identical issue, has made the hereinafter extracted observations:-
"......The doctrine of 'audi alteram partem' too contemplates that
no one should be condemned unheard. If the impugned order is
allowed to hold ground without any fault of the appellant, he will
feel prejudiced in his right. In the words of F. Bucan "Nothing
rankles more in the human heart than brooding sense of injustice."
If the appellant is not afforded the opportunity to substantiate the
allegations contained in complaint by leading evidence, it will go
on rankling in his mind that injustice has been done to him. The
Courts are here to administer justice...."
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10. Also, in case titled as "Nitesh Kumar Vs. Sonu alias Sunil
Kumar", Criminal Appeal No. AS-88 of 2016, Decided on: 06-04-
2017, a Co-ordinate Bench of this Court has held that the cause of merit
and substantial justice is to prevail over technical consideration. The
relevant paragraph of this judgment is reproduced hereinafter:-
"8. In the facts and circumstances of the present case, I find that
the impugned order passed by the learned Judicial Magistrate Ist
Class, Gurgaon, has caused miscarriage of justice. If this order is not
set aside, the complainant/appellant will suffer irreparable loss. It is
settled law that the rights of the parties should be decided on merit as
far as possible. The Court should do substantial justice between the
parties and should not go into the technicalities of the law. Where
technical consideration and merit or cause of substantial justice are
pitted against each other, the cause of merit and substantial justice is
to prevail."
11. In view of the law laid down in judgments (supra), as also
taking into account the well settled proposition of law that, owing to fault
of counsel, a party to litigation cannot be made to suffer, and that, the
rights of the parties should be decided on merit as far as possible,
therefore, this Court deems it just and appropriate to set aside the
impugned order dated 01.12.2021, and, to remand the complaint (supra)
to the learned Magistrate concerned, otherwise the petitioner will suffer
an irreparable loss.
12. Consequently, the impugned order dated 01.12.2021, is set
aside and the complaint (supra) is ordered to be restored to its original
number and its proceedings shall continue from the stage from where it
was dismissed by the learned Magistrate concerned. The learned
Magistrate concerned is directed to proceed further as per law, after
giving notice to the parties concerned.
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13. Disposed of accordingly.
(KULDEEP TIWARI)
April 19, 2024 JUDGE
dharamvir
Whether speaking/reasoned. : Yes/No
Whether Reportable. : Yes/No
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