Punjab-Haryana High Court
G.S. Trading Co vs Shiwani Garg on 5 November, 2024
Author: Kirti Singh
Bench: Kirti Singh
KAPIL
2024.11.05 17:18
2024:PHHC:143460 Bes eta
CRM-M-54065-2024(0&M) .
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH
Sr. No.119 CRM-M-54065-2024(0&M)
Date of decision : 05.11.2024
G.S. Trading Co. through its proprietor Mr. Ratesh Kumar
vesee Petitioner
VERSUS
ShiwaniGarg 0G Respondent
CORAM: HON'BLE MS. JUSTICE KIRTI SINGH
Present: Mr. Kanav Goyal, Advocate for
Mr. Karan Sachdeva, Advocate, for the petitioner.
3 2k 3k ok 2
KIRTI_ SINGH, J. (Oral)
The present petition has been filed under Section 528 of
Bharatiya Nagarik Suraksha Sanhita, 2023 for quashing the impugned order
dated 02.11.2023 (Annexure P-1) passed by Judicial Magistrate 1st Class,
Kharar whereby the complaint bearing No.NACT/238/2023 dated
02.09.2023 titled as G.S. Trading Co. Through its Proprietor Mr. Ratesh
Kumar vs. Shiwani Garg under Section 138 of the Negotiable Instruments
Act, 1881 has been wrongly dismissed in default and further for restoration
of complaint to its original number.
2. The facts of the present case are that the complainant had filed a
criminal complaint bearing No.NACT/238/2023 dated 02.09.2023 under
Section 138 of Negotiable Instruments Act against the respondent stating
that the respondent/accused had purchased the construction material and for
the party payment of the material the respondent/accused issued a cheque
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2024.11.05 17:18
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CRM-M-54065-2024(0&M) 2
bearing no.000011 dated 20.03.2023 for amount of Rs. 1,00,000/- drawn on
Bank of Baroda. However the above mentioned cheque was dishonoured
with remarks "Payment Stopped by Drawer".
3. Learned counsel for the petitioner submits that the
respondent/accused was summoned in the aforesaid complaint, however he
kept avoiding the summons on one pretext or other. The complainant was
seriously pursuing his complaint and it was accused/respondent who was not
coming forward. However, the complainant wrongly noted down and could
not appear on 02.11.2023 and the Court of Judicial Magistrate 1st Class,
Kharar dismissed the complaint of the complainant for want of prosecution.
Learned counsel further submits that Judicial Magistrate 1st Class has erred
by dismissing the complaint for want of prosecution without taking into
account the fact that the complainant was not at fault and the non-
appearance of the complainant was neither intentional nor deliberate and it
was only on account of bonafide mistake.
4. Learned counsel for the petitioner has placed reliance upon
judgment passed by this Court in Rishi Sharma versus Akhilesh Sharma,
2015 (30) RCR (Criminal) 363) wherein the following has been held :
"The present petition has been preferred by the petitioner by
invoking provisions of Section 482 Cr.P.C. when as a matter of
fact, the appropriate remedy to be availed in the circumstances
of the present case is to file an appeal under Section
378(4)Cr.P.C. as dismissal of the complaint under Section 256
Cr.P.C. amounts to acquittal of the accused. However, the
question of maintainability of proceedings under Section 482
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2024:PHHC:143460 Bes eta
CRM-M-54065-2024(0&M) .
Cr.P.C. is no longer res integra in the light of judgment of this
Court in Chander Dev v. Raj Kumar Bhatia CRM-M33896 of
2011 decided on 11.12.2013 wherein reference has been made
to judgment of Hon'ble the Supreme Court of India in Punjab
State Warehousing Corporation Faridkot v. M/s Shri Durga
Ji Traders and others, 2012 (1) RCF (Criminal)."
5. Be that as it may and without commenting on the merits of the
case, but considering the fact that the complaint was dismissed for want of
prosecution by learned Judicial Magistrate 1st Class, Kharar vide order dated
02.11.2023 on failure of the petitioner/complainant to appear only on one
date of hearing, justice demands its restoration and decision on merit.
6. Accordingly, the present petition is allowed and the order dated
02.11.2023 passed by learned Judicial Magistrate 1st Class, Kharar is set
aside subject to payment of cost of Rs.10,000/- by the petitioner to be
deposited with the Poor Patient Welfare Fund, PGIMER Chandigarh within
a period of 10 days from today. The complaint is ordered to be restored to its
original number and the trial Court shall proceed in the case in accordance
with law.
(KIRTI SINGH)
JUDGE
05.11.2024
Kapil
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
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2024.11.05 17:18
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