K. Construction [ Appellant] Vs.  Shri Bhagwan Singh Poswal Chairman  [Respondents]

S.B. Criminal Appeal (SB) No. 2765/2023

HON’BLE MR. JUSTICE ANOOP KUMAR DHAND

Facts: This criminal appeal under Section 378(4) Cr.P.C. challenges the impugned order dated 05.04.2022 passed by the Special Metropolitan Magistrate (NI Act) Cases, No.12, Jaipur Metropolitan-I, Headquarter Sanganer in Criminal Case No.1336/21 by which the complaint filed by the appellant/complainant (hereinafter referred as “the complainant” has been dismissed for want of prosecution under Section 256 Cr.P.C. and the accused-respondents (hereinafter referred as “the respondents”) have been acquitted of the charge under Section 138 of the Negotiable Instruments Act, 1881.

Issue: Whether in the facts and circumstances of this case, the learned Magistrate was justified in dismissing the criminal complaint for non-appearance of the complainant at the stage where the accused were summoned through warrants and the case was transferred from the Court of Metropolitan Magistrate No.17, Jaipur Metro-I, Sanganer to the Court of Special Metropolitan Magistrate No.12, Jaipur Metro-I, Headquarter Sanganer without any intimation to the complainant?

Arguments on behalf of counsel for appellant:

Counsel for the complainant submits that a complaint under Section 138 of the Act of 1881 was submitted by the complainant against the respondents initially before the Court of Special Metropolitan Magistrate, NI Act Cases, No.3, Jaipur Metro and the same remained pending before the Court of Metropolitan Magistrate No.17, Jaipur Metro-I for a considerable time since 2013 till 2021. Counsel submits that almost on each and every occasion, counsel for the complainant appeared before the Court concerned and thereafter the case was transferred to the Court of Special Metropolitan Magistrate (NI Act) Cases, No.12, Jaipur Metropolitan-Ist, Headquarter Sanganer by the orders of Chief Metropolitan Magistrate, Jaipur Metro-I. Counsel submits that after transfer of the aforesaid complaint, the complainant could not appear before the Special Metropolitan Magistrate on 2-3 occasions.

Arguments on behalf of counsel for respondent:

Per contra, counsel for the respondents opposed the arguments raised by counsel for the complainant and submitted that even on 2-3 dates prior to passing of the impugned order dated 05.04.2022, the complainant failed to appear before the trial Court, hence the trial Court has not committed any error in rejecting the complaint for want of prosecution. Counsel submits that under these circumstances, interference of this Court is not warranted.

Held: The court allowed the present appeal and held that, “Undisputedly, on the fateful day i.e. on 05.04.2022, neither the complainant was present for trial nor any order directing complainant to remain present was passed on the earlier occasion, therefore the learned Magistrate ought to have adjourned the complaint to a later date directing the complainant to positively remain present on the next date. Without adopting the above reasonable course and providing the complainant a fair opportunity, the learned Magistrate rejected the complaint for want of presence of the complainant and acquitted the accused respondents vide impugned order dated 05.04.2022. Such an action on the part of the Magistrate was unreasonable and irregular. The impulsive decision of the learned Magistrate has led to miscarriage of justice warranting interference of this Court. This Court, therefore, is of the considered view that the learned Magistrate was not justified in straight away dismissing the complaint and ordering acquittal of the accused respondents on mere non-appearance of the complainant, therefore, the impugned order dated 05.04.2022 is liable to be quashed and set aside. For the reasons stated above, the impugned order dated 05.04.2022 stands quashed and set aside. The proceedings shall stand restored to its original number on the file of the learned Magistrate and the prosecution shall now proceed from the stage where it was, when the order of acquittal/dismissal of the complaint was passed.”