Shri Narendra Singh Rathore v. State of Uttarakhand and Anr

Judgment

1. The present application under Section 482 CrPC has been filed by the applicant, Narendra Singh Rathor, seeking to invoke the inherent jurisdiction of this Court to set aside the order dated 19.01.2018 passed by the learned 1st Additional Civil Judge (Junior Division)/Judicial Magistrate, Nainital in Criminal Complaint Case No. 1499 of 2016 titled "Narendra Singh Rathor vs. Nafeesh Ahamed", whereby the said complaint was dismissed for want of prosecution, as well as to set aside the judgment and order dated 31.08.2018 passed by the learned 2nd Additional District Judge, Nainital in Criminal Revision No. 27 of 2018 arising therefrom.

2. The proceedings originated from a complaint under Section 138 of the Negotiable Instruments Act, 1881, filed by the applicant against

Criminal Misc. Application No.1756of 2018, Shri Narendra Singh RathoreVs State of Uttarakhand and Anr - 1 Ashish Naithani J. the private respondent, alleging dishonour of cheque(s). The complaint was registered on 28.06.2016 before the Court of the learned Chief Judicial Magistrate, Nainital.

3. Cognizance was taken by the learned Magistrate, and after recording preliminary statements under Section 200 CrPC, summons were issued to the accused. On non-appearance, bailable warrants were issued, and subsequently, non-bailable warrants were also issued due to continued absence.

4. The respondent eventually surrendered on 16.10.2017 and was granted bail. The matter was then fixed for recording of the respondent’s plea under Section 251 CrPC.

5. On several subsequent dates—namely 13.11.2017, 27.11.2017,

13.12.2017, 08.01.2018, 12.01.2018, and 19.01.2018—either complainant or his counsel remained absent. On the last of these dates, i.e., 19.01.2018, the learned trial court, noting persistent absence, dismissed the complaint for want of prosecution.

6. Aggrieved by the said dismissal, the applicant preferred a criminal revision before the learned 2nd Additional District Judge, Nainital, which was dismissed on 31.08.2018, holding that such a revision was not maintainable in view of Section 401(4) CrPC. It was observed therein that the appropriate remedy lay in filing an appeal against the acquittal under Section 378(4) CrPC. Criminal Misc. Application No.1756of 2018, Shri Narendra Singh RathoreVs State of Uttarakhand and Anr - 2 Ashish Naithani J.

7. It is the case of the applicant that the absence on the said dates was neither deliberate nor wilful but occurred due to inadvertence and the court being vacant on several prior dates. The applicant contends that the complaint was otherwise being diligently pursued and requests restoration of the complaint in the interest of justice.

8. Learned counsel for the applicant submitted that the order dated

19.01.2018 passed by the learned trial court suffers from material irregularity and is liable to be set aside. It is urged that the complaint under Section 138 of the Negotiable Instruments Act was diligently prosecuted until unforeseen lapses caused by inadvertent non- appearance on a few dates led to its dismissal for default.

9. It is contended that the absence of the applicant or his counsel on

08.01.2018, 12.01.2018, and 19.01.2018 was not intentional but occurred due to a bona fide slip of memory, particularly as the presiding officer was on leave on multiple prior dates, including

13.11.2017, 27.11.2017, and 13.12.2017. It is urged complainant was under the impression that the matter had not progressed due to repeated adjournments and court vacancy.

10. The applicant submits that the learned trial court failed to exercise judicial discretion appropriately and ought to have taken into consideration the circumstances surrounding the absence rather than proceeding to dismiss the complaint without affording a final opportunity, especially when the delay was neither gross nor contumacious. Criminal Misc. Application No.1756of 2018, Shri Narendra Singh RathoreVs State of Uttarakhand and Anr - 3 Ashish Naithani J.

11. Learned counsel further argues that the subsequent criminal revision was dismissed as not maintainable under Section 401(4) CrPC, and no appeal under Section 378(4) CrPC was preferred since the applicant had not intended to challenge the acquittal per se but only sought restoration of his complaint, which could not be pursued on merits due to the default order.

12. It is submitted that if the complaint is not restored, the applicant will suffer irreparable loss as the opportunity to prove the dishonour of the cheque under Section 138 of the N.I. The act would be lost irretrievably, despite the complaint being otherwise maintainable and on record. The learned trial court, it is contended, failed to consider that the complaint had reached the stage of notice framing and deserved a chance to proceed on the merits.

13. In light of these submissions, the applicant prays that this Court invoke its inherent jurisdiction under Section 482 CrPC to set aside the impugned orders dated 19.01.2018 and 31.08.2018 and restore the complaint to its original number before the trial court.

14. Learned counsel appearing for respondent no. 2, Nafeesh Ahamed, vehemently opposed the application and contended that the present proceedings under Section 482 CrPC are wholly misconceived, legally untenable, and constitute an abuse of the process of the Court.

15. It is submitted that the order dated 19.01.2018 was passed by the learned trial court in accordance with law, invoking Section 256 CrPC, after the complainant remained continuously absent on six dates of hearing—namely 13.11.2017, 27.11.2017, 13.12.2017, 08.01.2018, Criminal Misc. Application No.1756of 2018, Shri Narendra Singh RathoreVs State of Uttarakhand and Anr - 4 Ashish Naithani J.

12.01.2018, and 19.01.2018. The respondent emphasises that such serial absence cannot be characterised as a mere “accidental slip” or bona fide lapse.

16. The respondent argues that once the complaint was dismissed under Section 256 CrPC, it resulted in an order of acquittal in his favour. The appropriate remedy available to the complainant was to file an appeal under Section 378(4) CrPC, after seeking special leave. Instead, the applicant wrongly pursued a criminal revision, which was rightly dismissed as not maintainable.

17. It is contended that having failed to avail the proper remedy within the prescribed time, the applicant cannot now invoke the inherent powers of this Court to bypass the statutory appeal mechanism. The exercise of jurisdiction under Section 482 CrPC, it is argued, is impermissible when a specific remedy exists under the Code, and cannot be used to revive proceedings concluded by a lawful acquittal.

18. The respondent relies upon the observations made by the revisional court in its order dated 31.08.2018, which clarified that no revision lies against an order of acquittal in a complaint case, and the only remedy was an appeal under Section 378(4) CrPC. The respondent maintains that despite such clear judicial guidance, the applicant has deliberately chosen a circuitous route to avoid filing a delayed appeal.

19. It is further submitted that the absence of the complainant and his counsel cannot be condoned lightly, particularly in a case of quasi- criminal nature under Section 138 of the N.I. Act, where proceedings Criminal Misc. Application No.1756of 2018, Shri Narendra Singh RathoreVs State of Uttarakhand and Anr - 5 Ashish Naithani J. impose onerous consequences upon the accused. The repeated absence caused unnecessary harassment to the respondent and resulted in the wastage of judicial time.

20. Lastly, it is urged that the complaint was dismissed after repeated indulgence and not on the first instance of default. Restoration at this stage would not only set a poor precedent but also amount to overriding the statutory protection afforded to the accused under Section 256 CrPC. Accordingly, it is prayed that the application be dismissed with exemplary costs to prevent further abuse of process.

21. Heard learned Counsel for the parties and perused the records.

22. It is not in dispute that the applicant/complainant had instituted a complaint under Section 138 of the Negotiable Instruments Act, which was duly registered and proceeded to the stage of issuance of summons. The respondent eventually entered an appearance and was granted bail. The matter was fixed for framing of notice under Section 251 CrPC.

23. The order sheet reveals that on as many as six consecutive dates—13.11.2017, 27.11.2017, 13.12.2017, 08.01.2018, 12.01.2018, and 19.01.2018—neither the complainant nor his counsel appeared before the trial court. While it may be accepted that on some earlier dates the presiding officer was on leave, it cannot be overlooked that the complainant failed to remain vigilant about the proceedings thereafter. Even assuming a lapse of memory, it is incumbent upon a litigant to demonstrate reasonable diligence in prosecuting a case of this nature. Criminal Misc. Application No.1756of 2018, Shri Narendra Singh RathoreVs State of Uttarakhand and Anr - 6 Ashish Naithani J.

24. The learned trial court, on 08.01.2018 and again on 12.01.2018, appears to have granted further opportunity in the interest of justice, clearly indicating judicial leniency. Yet, there was no appearance even on the final date, i.e. 19.01.2018. In this backdrop, the trial court was within its authority under Section 256 CrPC to dismiss the complaint for default, which resulted in an order of acquittal.

25. This Court opines that, the learned revisional court, in its order dated 31.08.2018, rightly held that the revision was not maintainable against an order of acquittal in a complaint case, and that the proper remedy lay in preferring an appeal under Section 378(4) CrPC, subject to grant of special leave by the High Court. That remedy was admittedly not availed of by the applicant.

26. Section 378(4) CrPC states that, “If such an order of acquittal is passed in any case instituted upon a complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court.”

27. Additionally, the Madras High Court in S. Ganapathy V. N. Senthilvel (2016) 4 CTC 119) has held that “As against an order of acquittal passed by a Magistrate on acomplaint, an appeal will lie only before the High Court, under Section 378 (4) of Cr.PC. In such cases, the complainant has to seek for Special leave under Section 378 (5) of Cr.PC.” Criminal Misc. Application No.1756of 2018, Shri Narendra Singh RathoreVs State of Uttarakhand and Anr - 7 Ashish Naithani J.

28. Similarly, the decisions of the Hon’ble Supreme Court in Damodar S. Prabhu v. Sayed Babalal H. (2010) 5 SCC 663, Subash Chand v. State (Delhi Administration) (2013) 2 SCC 17, and Mallikarjun Kodagali (Dead) through LRs v. State of Karnataka (2019) 2 SCC 752, which reflects that in complaint cases, if the accused is acquitted, the complainant cannot file a revision under Section 397 CrPC but must instead file an appeal under Section 378(4) CrPC after obtaining special leave from the High Court.

29. Furthermore, it is well settled that inherent powers under Section 482 CrPC cannot be exercised to circumvent specific statutory provisions or to revive proceedings already concluded by an order of acquittal passed under Section 256 CrPC. In PadmabenAjitbhai Patel v. State of Gujarat, (2020) 9 SCC 706, the Hon’ble Supreme Court reiterated that inherent jurisdiction must be sparingly exercised and not in cases where specific remedies are available.

30. The repeated absence of the complainant, the failure to avail statutory remedy, and the unexplained delay, together, do not present a case of procedural irregularity or miscarriage of justice warranting exercise of this Court’s extraordinary jurisdiction under Section 482 CrPC.

31. While the applicant may have perceived hardship, such hardship flows from his own conduct in failing to appear and prosecute the complaint. The legal maxim actus curiae neminemgravabit cannot be invoked where the default is entirely attributable to the party. Moreover, the maxim interest reipublicaeut sit finislitium also guides that litigation must attain finality. Criminal Misc. Application No.1756of 2018, Shri Narendra Singh RathoreVs State of Uttarakhand and Anr - 8 Ashish Naithani J.

32. Additionally, the court takes note of the legal maxim vigilantibus non dormientibus jura subveniunt—the law aids the vigilant and not those who sleep over their rights—is fully applicable in the present case. The applicant, having been negligent and indolent in pursuing his case, is now estopped from claiming equitable relief under the garb of inherent powers.

33. The present application, if allowed, would amount to nullifying the effect of an acquittal granted under a valid statutory provision and would undermine the legislative intent behind Section 256 CrPC, which seeks to balance the complainant’s right of prosecution with the accused’s protection against harassment and undue delay.

34. Hence, the present application is dismissed. (Ashish Naithani J.)

15.05.2024 Criminal Misc. Application No.1756of 2018, Shri Narendra Singh RathoreVs State of Uttarakhand and Anr - 9 Ashish Naithani J.