Punjab-Haryana High Court
M/S Bala Sundri Trading Company And ... vs Sandeep Singh on 30 April, 2024
Author: Sandeep Moudgil
Bench: Sandeep Moudgil
Neutral Citation No:=2024:PHHC:060320
232 2024:PHHC:060320
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-A-611-2023
DECIDED ON: 30.04.2024
M/S BALA SUNDRI TRADING COMPANY AND ANOTHER
.....APPLICANTS/APPELLANTS
VERSUS
SANDEEP SINGH
.....RESPONDENT
CORAM: HON'BLE MR. JUSTICE SANDEEP MOUDGIL
Present: Mr. Ravi Dutt Sharma, Advocate
for the applicant/appellant.
SANDEEP MOUDGIL, J (ORAL)
The instant application has been preferred under Section 378(4)
Cr.P.C. seeking grant of leave to appeal against the judgment of acquittal
dated 02.11.2022 passed by the Judicial Magistrate Ist Class, Pehowa.
The aforesaid judgment under appeal has arisen out of
complaint under Section 138 of Negotiable Instruments Act, 1881 preferred
by the applicant-complainant wherein the preliminary evidence was
recorded and accused was ordered to be summoned on 01.11.2018 but he
was evading the service and finally the proclamation was issued which was
received back duly effected but despite such service, the accused failed to
appear after recording of the executing police officer on 06.07.2022, the case
was deferred to 12.08.2022 by the trial Court for presence of accused. It is
asserted on behalf of the appellant-complainant that the case file was taken
up on 12.08.2022 though the trial Court was not being held as the presiding
officer was on leave from 08.08.2022 to 12.08.2022. Finally the accused
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appeared on 03.09.2022 before the trial Court who was released on bail and
the proceedings were deferred to 12.10.2022 for cross-examination of the
complainant after recording of examination-in-chief. The accused moved an
application seeking exemption on 12.10.2022 and complainant was also not
present on that day due to certain unavoidable reason as has been pressed on
his behalf by Sh. Ravi Dutt Sharma, Advocate and a notice was issued to the
complainant through his counsel for 02.11.2022. Though the said notice was
not brought to the knowledge of applicant-complainant and being ignorant
of the date before the trial Court, he did not appear, however, on that day
itself the complaint was dismissed for non-prosecution.
It is in this backdrop of events, the instant appeal came to be
filed before this Court.
Having heard learned counsel for the applicant, I am of the
considered view that earlier reasonable time was consumed to obtain the
presence of accused-respondent since the date of initiation of complaint i.e.
29.10.2018 till 03.09.2022 almost four years and on one occasion when the
complainant failed to appear for certain unavoidable reasons and could not
even inform his counsel under a mistaken belief of having no knowledge of
the date of proceedings on 12.10.2022 as well as 02.11.2022 which was
neither intentional nor deliberate. It is specific stand of the learned counsel
for the applicant-complainant that due to miscommunication between his
counsel appearing before the trial Court, he could not put in appearance as
he is conducting his business merely at a distance of 100 mts from judicial
complex, Pehowa in the name and style of Bala Sundri. Citing the said
reason, he asserts on his bona fide that there is no reason otherwise for any
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deliberate or intentional absence from the trial since he himself is the
complainant and was eager to get the same adjudicated at the earliest.
A perusal of the case file would depict that the applicant-
complainant had been pursuing his complaint continuously without any faith
for more than 25 dates by his appearance in person and on an isolated
instance he became absent.
In the light of these aforesaid facts and circumstances and
having gone through the order impugned before this Court dated 02.11.2022
without recording the opportunities and the details to examine the conduct
of complainant it has observed that such absence tantamounts to wastage of
precious time of the Court apart from burdening the State exchequer. Such
an observation is totally unwarranted in the light of the fact that almost 3
years were consumed in effecting service upon an accused whereas it is
only on an isolated instance after attending the Court for consecutively 25
days without any default the applicant-complainant absented and such
instance cannot be termed to be deliberate and intentional and on his one
absence the trial Court cannot come to the conclusion that complainant is
wasting precious time of the Court and is also burdening the State exchequer
without analyzing the order sheets of the case file.
Apart from the above, it is the accused as well who was not
present on that date who has moved an application for exemption which
ought to have been taken more seriously by the Court who earlier also made
accused to appear in the trial Court after exercising the procedure given
under Section 82 Cr.P.C. after a long delay of 3 years from the date of the
institution of the complaint for which even the complainant has suffered,
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who has approached the Court seeking justice. This Court cannot ignore the
fact on account of procedural delays at the same time the complainant has
also suffered on account of the judicial principle that "Justice delayed is
justice denied".
In the light of the aforesaid discussion and the case law referred
hereinabove, the order dated 02.11.2022 passed by Judicial Magistrate Ist
Class, Pehowa is not sustainable in the eyes of law and the same is hereby
set aside.
The complaint is remanded back to Judicial Magistrate Ist
Class, Pehowa for taking decision afresh on merits after providing ample
opportunities as per law to lead evidence to all the parties to the lis.
The instant petition stands disposed off in the aforesaid terms.
(SANDEEP MOUDGIL)
30.04.2024 JUDGE
Poonam Negi
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
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