Narendra Singh v. State of U.P. and Another) as well as proceedings in Complaint C
Legal Reasoning
HIGH COURT OF JUDICATURE AT ALLAHABAD ***** (Sl No.3) Court No. - 79 Case :- APPLICATION U/S 482 No. - 17140 of 2024 Applicant :- Cosmopolitan Public Senior Secondary School And Another Opposite Party :- State of U.P. and Another Counsel for Applicant :- Kuldeep Tripathi,Shiv Shanker Mishra Counsel for Opposite Party :- G.A. Hon'ble Anish Kumar Gupta,J.
Legal Reasoning
1. Heard Sri Shiv Shanker Mishra, learned counsel for the applicants and Sri Uday Bhan, learned A.G.A. for the State. 2. The instant application under Section 482 Cr.P.C. has been filed seeking quashing of the order dated 29.03.2024 in Criminal Revision No. 357 of 2022 (Narendra Singh vs. State of U.P. and Another) as well as proceedings in Complaint Case No. 28150 of 2018 (Firm Dewal Brick Works vs. Cosmopolitan Public Senior Secondary School) under Section 138 of the Negotiable Instruments Act, 1881 (in short, 'the N.I. Act'), P.S.- Civil Lines, District- Moradabad, pending in the court of learned Additional Civil Judge, N.I. Act, Moradabad. 3. Learned counsel for the applicants submits that the complaint case filed by the opposite party no.2 under Section 138 of the N.I. Act, was dismissed for want of prosecution vide order dated 28.09.2022, by the Magistrate as the complainant was continuously absent and the complainant did not record his statements under Section 200 Cr.P.C., despite various opportunities granted by the trial court. Against the aforesaid order dated 28.09.2022, the Criminal Revision No. 357 of 2022, was filed by the opposite party no.2 wherein the notices were issued to the applicants and applicants have contested revision petition. However, the Revisional Court has erroneously allowed the said criminal revision petition, vide dated 29.03.2024, therefore, the instant application has been filed by the applicants. 4. Learned counsel for the applicants submits that the instant complaint case was filed on 21.04.2018, thereafter, the matter was referred to the Mediation Centre, however, after the first and the second appearance of the opposite party no.2, he did not appear before the trial court though his counsel was regularly appearing. Subsequently, the counsel for the opposite party no.2 and the complainant also did not appear before the trial court. Thereupon, on 09.02.2022 a notice was issued to the complainant for appearance on 28.09.2022. Despite the aforesaid notice issued none appeared on behalf of the complainant on 28.09.2022, therefore, learned Magistrate has rejected the complaint case for want of prosecution. Learned counsel for the applicants further submits that revision was allowed by the Revisional Court without there being any sufficient cause shown by the complainant for his non-appearance. Therefore, he submits that the Revisional Court had erred in allowing the revision petition and remitting the matter back to the trial court. 5. Per contra, learned A.G.A for State submits that the applicants herein has not denied the issuance of cheque and after complying with all the formalities under Section 138 of the N.I. Act, the said complaint case was filed by the opposite party no.2 and the complaint is accompanied with an affidavit of the complainant. Therefore, the affidavit filed alongwith the complaint should be treated as his statement under Section 200 Cr.P.C. Once, the complaint is competently filed alongwith an affidavit it is the duty of the trial court to see whether a prima facie case been made out or not and thereupon it was required to summon the accused. Merely, because the complainant was not present, the complaint ought not to have been dismissed. The instant complaint was dismissed under Section 203 of Cr.P.C. and Section 203 Cr.P.C. mandates that once the complaint is filed it is the duty of the Magistrate to consider the statements of both the complainant and the witnesses and the result of the inquiry or the investigation, if any, conducted by the Magistrate under Section 202 Cr.P.C. and thereupon, if the Magistrate is of opinion that there is no sufficient ground for proceeding, he can dismiss the complaint. However, in the instant case without considering the material available on record, the Magistrate has dismissed the complaint, which was not permissible in law. Once, the complaint under Section 138 of the N.I. Act is filed alongwith an affidavit, it is the duty of the Magistrate to consider the material available and summon the accused if he is satisfied that a prima facie case is made out. Merely, on non presence of the complainant, the complaint cannot be disposed under the N.I. Act. Therefore, there is no error in the judgement and order dated 29.03.2024, passed by the learned Revisional Court. Therefore, learned A.G.A. submits that no interference is called for in the instant case. 6. Having heard the submissions made by learned counsel for the parties this Court has carefully perused the record of the case and from the record of the case it is apparent that the complaint was filed on 21.04.2018 and on the same date the matter was referred for mediation. Though, the complainant initially appeared before the Mediation Centre, however, subsequently neither the applicants nor the complainant was present before the Mediation Centre. Thereafter, vide order 27.07.2018 it was recorded that the matter returned from the Mediation Centre without any settlement. Subsequent thereto, the case was transferred to some other Court and the complainant was not present there. The instant complaint was filed alongwith an affidavit of the complainant and vide order dated 28.09.2022 the complaint was dismissed by the trial court for want of prosecution without perusing the material available on record. 7. Section 203 of Cr.P.C. provides a procedure for dismissal of complaint, which reads as under: "Section 203. Dissmissal of Complaint- If, after considering the statements on oath (if any) of the complainant and of the witnesses and the result of the inquiry or investigation (if any) under section 202, the Magistrate is of opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint, and in every such case he shall briefly record his reasons for so doing." 8. From the perusal of the aforesaid provision of Section 203 Cr.P.C., it is apparent that once a complaint is filed alongwith an affidavit on oath of the complainant or any other witness and if any inquiry has been conducted by the Magistrate under Section 202 Cr.P.C. and after considering the entire material so produced before the Magistrate, if the Magistrate is of the opinion that there is no sufficient ground for proceeding in the matter, he can dismiss the complaint and he shall briefly record his reasons for doing so. However, in the instant case the complaint was disposed only for default of the appearance of the complainant, which is not permissible. Therefore, in the considered opinion of this Court there is no illegality in the order dated 29.03.2024, whereby revision was allowed and remitted back by the trial court to proceed in accordance with law 9. Therefore, the instant application lacks merit and is accordingly dismissed. Order Date :- 12.9.2024 Shubham Arya (Anish Kumar Gupta, J.)