Punjab-Haryana High Court
Manjit Kaur vs Harjinder Kaur on 20 March, 2024
Author: Pankaj Jain
Bench: Pankaj Jain
Neutral Citation No:=2024:PHHC:040679
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
258 2024:PHHC:040679
CRM-A-2797 of 2019
Date of decision: 20.03.2024
Manjit Kaur ..Applicant
Vs.
Harjinder Kaur ..Respondent
CORAM: HON'BLE MR. JUSTICE PANKAJ JAIN
Present: Mr. H.S. Batth, Advocate
for the applicant.
Mr. Amit Arora, Advocate
for the respondent.
***
PANKAJ JAIN, J.(ORAL)
CRM-A-2797 of 2019
The prayer in the application filed under Section 378(4) Cr.P.C.
filed by applicant leave to appeal from the order dated 12.09.2019 passed by
Chief Judicial Magistrate, Tarn Taran whereby the complaint filed under
Section 138 of the Negotiable Instruments Act, 1881 has been dismissed in
default.
Upon considering the submissions, the instant applicant is
allowed and leave to prefer appeal is granted to the applicant.
Registry is directed to assign the number to the instant appeal
forthwith.
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Main case
The appeal seeking leave to appeal is directed against the order
dated 12.09.2019 passed by Chief Judicial Magistrate, Tarn Taran, whereby
the complaint preferred by the appellant was dismissed for non-prosecution
on default of the appellant invoking provisions of Section 256 of the Code of
Criminal Procedure (for short, 'the Code').
2. Applicant filed complaint against the respondent for the offence
punishable under Section 138 N.I. Act vis-à-vis cheque of Rs. 15 lacs. The
trial Court considering the preliminary evidence brought on record by the
applicant summoned the respondent. On 12.09.2019, when the matter was
fixed for evidence of the accused, the applicant/complainant could not
appear leading to passing of the impugned order. Further submits that once
the matter was fixed for appearance of the accused, the trial Court ought not
to have resorted by invoking provisions of Section 256 of the Code to
dismiss the complaint. Reliance is being placed on law laid down by
Hon'ble the Supreme Court in S. Rama Krishna vs S. Rami Reddy (D) By
His Lrs. And others 2008 (5) SCC 535 and M/s BLS Infrastructure
Limited vs M/s Rajwant Singh and others 2023 (4) SCC 326.
3. Per contra, counsel for the accused submits that it was not the
first default of the complainant, however, he is not in a position to dispute
that the matter was indeed on the said date was fixed for appearance of the
accused.
4. Having heard counsel for the parties and going through the
record of the case, this Court finds that law with respect to invoking
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provisions of Section 256 of the Code already stands settled by Apex Court
in Associated Cement Company Limited vs Keshvanand 1998 (1) SCC
687 which was followed in S. Anand vs Vasumathi Chandrasekar 2008
(4) SCC 67. These two judgments have further been followed in M/s BLS
Infrastructure's case (supra), the relevant of which is as under:-
"11. In the case of S. Anand (supra), addressing a situation where
the complainant was absent but had already examined his witnesses, this
Court observed as follows:
"12. Section 256 of the Code provides for disposal of a
complaint in default. It entails in acquittal. But, the question
which arises for consideration is as to whether the said
provision could have been resorted to in the facts of the case as
the witnesses on behalf of the complainant have already been
examined.
13. The date was fixed for examining the defence witnesses. The
appellant could have examined witnesses, if he wanted to do the
same. In that case, the appearance of the complainant was not
necessary. It was for her to cross-examine the witnesses
examined on behalf of the defence."
After observing as above, in paragraph 15, it was held thus:
"15....when the prosecution has closed its case and the accused
has been examined under section 311 of the Code of Criminal
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Procedure, 1973 the Court was required to pass a judgment on
merit of the matter."
12. In Associated Cement Co. Ltd. (supra), the purpose of
inserting a provision like Section 256 of the code was discussed
and in light thereof, in paragraph 16, it was observed as under:
"16. What was the purpose of including a provision like
Section 247 in the old Code (or Section 256 in the new
Code). It affords some deterrence against dilatory tactics
on the part of a complainant who set the law in motion
through his complaint. An accused who is per force to
attend the court on all posting days can be put to much
harassment by a complainant if he does not turn up to the
court on occasions when his presence is necessary. The
section, therefore, affords protection to an accused
against such tactics of the complainant. But that does not
mean if the complainant is absent, the court has a duty to
acquit the accused in invitum."
After observing as above, it was held that where the
complainant had already been examined as a witness in
the case, it would not be appropriate for the Court to
pass an order of acquittal merely on non-appearance of
the complainant. Thus, the order of acquittal was set-
aside and it was directed that the prosecution would
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proceed from the stage where it reached before the order of
acquittal was passed."
5. Thus, the test to invoke Section 256 of the Code is whether the
proceedings were such for which the presence of the complainant was
necessary. In the considered opinion of this Court, the trial Court failed to
make itself alive of the situation that the matter was indeed fixed for
appearance of the accused and, thus, was not justified in dismissing the
complaint and ordering acquittal of the accused on mere non-appearance of
the complainant.
6. Keeping in view the aforesaid dictum and the fact that on the day the
impugned order was passed presence of the applicant was not necessary, this
Court finds that the impugned order cannot be sustained and is hereby set
aside. Complaint is ordered to be restored to its original number and stage.
Parties are directed to appear before Trial Court on 22.04.2024.
7. As the cheque was of the year 2016 and the complaint was filed in
2016, this Court is quite sanguine that the Trial Court shall decide the
complaint expeditiously.
8. In view of the above, the present appeal is allowed.
(PANKAJ JAIN)
March 20, 2024 JUDGE
Poonam Sharma
Whether speaking/reasoned Yes
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