1. The present appeal has been filed under Section 378 of the Code of Criminal Procedure (Cr.PC) against the impugned order dated 29.09.2023, passed by the learned Additional Chief Judicial Magistrate, Court No.1, Una, H.P., in Complaint No.259 of 2020, whereby the complaint filed by the appellant-complainant under Section 138 of the Negotiable Instruments Act (for short, ‘NI Act’) has been dismissed for non- prosecution.
2. It has been submitted by the learned counsel for the appellant that after receiving the summon/notice, the appellant-complainant had given the same to his peon for handing over it to his counsel and thereafter, he forgot to ask the peon whether he handed over the notice to his counsel or not. He further submitted that due to busy/hectic schedule, he had failed to intimate his counsel regarding the date of hearing of the case and for this reason only, neither the appellant nor his counsel had put in appearance before the learned trial Court on 29.09.2023, therefore, the learned trial Court had dismissed the complaint in default for want of prosecution, vide order dated 29.09.2023, which has resulted into miscarriage of justice.
3. I have heard learned counsel for the appellant as well as the learned counsel for respondents No.2 & 3 and also gone through the material available on record.
4. In Associated Cement Co. Ltd. Versus Keshvanand, (1998) 1 SCC 687, it has been held by the Hon’ble Supreme Court in para-16 of the judgment 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.”
5. In Mohd. Azeem Versus A. Venkatesh and another, (2002) 7 SCC 726, it has been held by the Hon’ble Supreme Court in para-3 of the judgment as under:-
“3. From the contents of the impugned order of the High Court, we have noticed that there was one singular default in appearance on the part of the complainant. The learned Judge of the High Court observes that even on earlier dates in the course of trial, the complainant failed to examine the witnesses. But that could not be a ground to dismiss his complaint for his appearance (sic absence) on one single day. The cause shown by the complainant of his absence that he had wrongly noted the date, has not been disbelieved. It should have been held to be a valid ground for restoration of the complaint.”
6. In the instant case, after perusal of the material available on record and also keeping in view the law laid down by the Hon’ble Supreme Court, this Court is satisfied that the non- appearance of the complainant as well as his counsel before the trial Court on 29.09.2023 was neither intentional nor deliberate, but has occurred due to the bona fide mistake with respect to the date of listing of the case. Therefore, keeping in mind the facts and circumstances of the case and in the interest of justice, the impugned order dated 29.09.2023, dismissing the complaint for non-prosecution, deserves to be set aside.
7. Hence, in view of the facts and circumstances of the case, the present appeal is allowed and the impugned order dated 29.09.2023 is set aside, subject to costs of Rs.7,500/-, which shall be paid by the appellant-complainant to the respondents-accused persons on or before the next date of hearing in the trial Court. The complaint filed by the appellant- complainant under Section 138 of NI Act is ordered to be restored to its original number. The trial Court shall decide the complaint on its merits in accordance with law. Parties are directed to appear before the trial Court on 19.11.2024. The record be sent back forthwith.
8. The pending miscellaneous application(s), if any, shall also stand disposed of.
