Criminal Appeal No. 6680 of 2023 · Madhya Pradesh High Court · 2023

ORDER This appeal has been filed by the appellant under Section 378 of Cr.P.C. against the impugned order dated 27.03.2023 passed by the JMFC, Barwani, District Barwani in SCNIA No.150/2021, by which the trial Court has dismissed the private complaint in absence of the complainant having filed under Section 138 of the Negotiable Instruments Act (in short “NI Act”) and acquitted the non-applicant/respondent. 2/ The case of the appellant in nutshell is that appellant and the respondent are very well known to each other and Rs.2,00,000/- was required to respondent hence, he demanded the same from the appellant. the appellant Signature Not Verified Signed by: AMIT KUMAR Signing time: 11/9/2023 10:58:04 AM 2 had given Rs.200000/- in cash to the respondent. For discharging his liability, the respondent has issued one cheque of Rs.2,00,000/-in favour of the appellant/complainant as payment of loan amount with the assurance that upon presentation in his bank, the complainant would get the cheque amount from the bank. Therefore, the assurance given by the accused, appellant/complainant presented the said cheque in his bank for encashment but the said cheque was dishonoured by his bank with the remark “Funds Insufficient” on 14.09.2021. Thereafter, the appellant has sent a demand notice dated 01.10.2021 through his advocate and the said notice was duly served upon the accused but he did not repay the cheque amount within time. Therefore, the appellant has presented the said complaint case before the learned trial Court. 3/ On 27.03.2023 the case was pending before the trial Court, but on the same day nobody has marked presence on behalf of the complainant, therefore, learned trial Court has dismissed complaint filed by appellant/complainant in default. Being aggrieved by the aforesaid order, the appellant has preferred this appeal. 4/ Learned counsel for the appellant submits that the impugned order passed by the trial Court is contrary to the law and facts. The trial court has not considered that the complainant is bonafide as he was not informed about the presence in the case on the scheduled date i.e. on 27.03.2023. The complainant has to suffer a huge economic loss without his fault. It shall be in the interest of justice that complainant be given proper opportunity to contest his case. Hence, he prays that the impugned order dated 27.03.2023 passed by the trial Court be quashed and the private complaint be restored to its original number. Signature Not Verified Signed by: AMIT KUMAR Signing time: 11/9/2023 10:58:04 AM 5/ I have heard the counsel for the petitioner at length and perused the 3 record. 6/ From perusal of the impugned order, it appears that on 27.03.2023 case of the appellant/complainant has been dismissed in default in absence of the complainant and his counsel. The trial Court has acquitted the accused. The Kerala High Court in the case of Krishnankutty Vs. Ramani reported in AIR Online 2021 Ker 1110 has held that “on the ground of non appearance of the complainant or death of complainant, after appearance of the accused on service of summons or otherwise, amounts to acquittal of accused under Section 256 of Cr.P.C. and remedy available to the complainant is to file appeal under Section 378(4) of Cr.P.C.” Therefore, in view of the law laid down by the Kerala High Court in the aforesaid case, the dismissal of the complaint in default also amounts to acquittal of the accused under Section 256 of Cr.P.C. 7/ The coordinate bench of this Court in the case of Santosh Kumar vs. Jaidka GAS Agency reported in [2016(4) MPLJ 50] held as under:- “7. Thus regardless of the fact, whether the order of acquittal is recorded in the trial or in the appeal, a special leave to appeal against acquittal, shall be maintainable in a case instituted on a private complaint, view of the expression “from an original or appellate order of acquittal passed by any Court other than a High Court” used in sub-section (1) and expression “such an order of acquittal” used in sub-section (4) of section 378.

8. Since an appeal against acquittal is so maintainable, in view of sub- section (4) of section 401 of the Criminal Procedure Code, no revision would be maintainable.” 9/ The Calcutta High Court in the case of Govinda Chandra Bag v. Radhakanta Bad and Ors., reported in 1987 Cr.LJ 477, has held as Signature Not Verified Signed by: AMIT KUMAR Signing time: 11/9/2023 10:58:04 AM under:-- 4 "Summons case--Section 256--Acquittal of accused for non-appearance of complaint--Complainant remaining present on all dates of hearing--Remaining absent only on date of hearing arguments due to certain unavoidable circumstances--Date of hearing arguments was also date fixed for report from police against allegation made by complainant against accused-- Acquittal of accused on ground that complainant was not eager to proceed with case held, was not proper." 10/ The coordinate bench of this Court in the case of Right Services Ratlam Vs. Chhotu Bhaiya Road Lines, Ratlam reported in 2003(3) MPHT 561 has also observed that:- “12. It has been held by the Supreme Court in relation to Section-256 of the Code in the case of Mohd. Azeem v. A. Venkatesh and Anr., reported in (2002) 7 SCC 726, that on one singular default in appearance on the part of the complainant, the dismissal of the complaint under Section 138 of the Negotiable Instruments Act is not proper. The cause shown by the complainant of his absence that he had wrongly noted the date should not have been disbelieved and it should have been held to be a valid ground for restoration of the complaint. The Supreme Court has further held that the learned Magistrate and the High Court had adopted a very strict and unjust attitude resulting in failure of justice and the Supreme Court has set aside the orders and restored the complaint and directed the Magistrate to proceed with the trial of the case after issuance of formal notices to both the parties.” 11/ In light of the aforesaid judgment, the co-ordinate Bench of this Court in the case of Babulal Khandelwal vs. Leeladhar Radheshyam Tiwari [2009 Lawsuit (MP) 446 in para no.7 arraigned as under:- Signature Not Verified Signed by: AMIT KUMAR Signing time: 11/9/2023 10:58:04 AM 5 "In Right Services, Ratlam Vs. Chhotu Bhaiya Road Lines, Ratlam reported in MANU/MP/0211/2003 : 2003 (2) M.P.L.J. 523 it has been held that while dismissing the 07-11-2023 complaint in the absence of complainant, the Court should not pass the orders of dismissal of complaints and acquit the accused persons mechanically. The Court should consider the nature of the offence and the material produced by the complainant and also the stake which complainant is having in the matter. If on solitary hearing or hearings for one or the other reasons if the complainant is not present, normally the Court should adjourn the case and should not arbitrarily exercise its discretion refusing the exemption. Normally in complaint cases filed under section 138 of the Negotiable Instruments Act when a complaint is filed, the complainant is having a stake in the matter. Therefore, in the absence of the complainant, the complaint should not be dismissed immediately. The Court should either adjourn the case or may proceed to hear the case under the proviso of section 256 of the Cr.P.C, and if the complainant is represented by an Advocate or by officer conducting prosecution or if the personal attendance of the complainant is not necessary, the Court should either grant exemption, suo-motu or on the application of the advocate, as the order of dismissal of complaint operates as a final order. Therefore, normally it should be passed after proper application of mind and exercise of judicial discretion. Impugned orders, dismissing the complaints and acquitting the respondent/accused are hereby set aside." Signature Not Verified Signed by: AMIT KUMAR Signing time: 11/9/2023 10:58:04 AM 12/ In view of the aforesaid and from perusal of the impugned order, it is 6 clear that the trial Court has already taken cognizance in the matter and also summoned the respondent/accused and he has also been enlarged on bail, therefore, in the absence of the complainant normally the Court should have adjourned the case instead of dismissing it and acquitting the accused person. According to this Court looking to the nature of offence, the trial Court has not exercised its discretion properly and judicially. 13/ In the result, this appeal under Section 378 of Cr.P.C. is allowed and the impugned dated 27.03.2023 passed by the JMFC, Barwani, District Barwani in SCNIA No.150/2021 is hereby set aside. The private complaint filed by the appellant/complainant is restored to its original number and the trial Court is directed to proceed with the trial of the case in accordance with law. 14/ Let a copy of this order be sent to the trial Court immediately along with the record. Certified copy as per rules (PREM NARAYAN SINGH) JUDGE Signature Not Verified Signed by: AMIT KUMAR Signing time: 11/9/2023 10:58:04 AM