SHROFF FILM Vs. SATISH PATIL

JUDGEMENT

(1.) Heard the learned counsel for appellant. The counsel for respondent is absent, inspite of the case being repeatedly called out. Hence the counsel for the appellant is heard.

(2.) The facts of the case are as follows- The respondent herein is said to have borrowed a loan from the complainant agreeing to repay the same in due course as there was default in repayment and on demand the respondent had issued two cheques bearing No. 016115 for Rs.10,000/- dated 13.06.2005 and another bearing No.016116 for Rs.11,000/- dated 07.06.2005 both drawn on U.T.I. Bank, Hubli in favour of the complainant in discharge of the liability. When the cheques were presented for collection, the same were returned through the complainant's banker Union Bank of India with a shara that there were 'insufficient funds' and were dishonoured as per memo dated 16.09.2005. The complainant had issued legal notice as required under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'N.I.Act', for brevity) to the respondent to pay the cheque amount within the stipulated period. Notice having been served, the respondent had issued a reply dated 22.01.2005 admitting that he had borrowed the amount reassuring that the amount would be repaid but since there was no further response the present petitioner had filed the complaint before the competent Court of Magistrate alleging the offence punishable under Section 138 of N.I. Act. The complaint was presented on 26.11.2005 and was further adjourned on 29.11.2005 on the request of the complainant's counsel. Thereafter the Presiding Officer was on leave on two further dates of hearing and on 24.02.2006 the complainant's counsel had sought for time and the matter was adjourned to 17.03.2006 on which date the Court below had directed that the matter be registered as a private complaint and to be put up on 10.04.2006. The Presiding Officer was on leave on the next date namely 10.04.2006 and on 18.05.2006 the complainant's counsel had again sought for time. The matter was adjourned to 27.06.2006 on which date since the complainant and his counsel remained absent and as there was no representation, the complaint was dismissed for default. It is this which is under challenge in the present appeal.

(3.) Though the complaint was of the year 2005, since the present complainant had challenged the very order by way of a petition under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C.', for brevity) the same was disposed of with leave to the complainant-petitioner to prefer an appeal and thereafter the present appeal is filed. The earlier disposal is dated 15.10.2008 and it is only thereafter that the present petition is filed. Hence, the long pendency of this matter is explained. Insofar as the dismissal of the complaint by the Court below is concerned, nodoubt the Court is empowered to dismiss the complaint on account of the absence of complainant or his counsel. This, however, is not to be exercised mechanically on any given date of hearing for there may be valid reasons for the absence of the complainant and his counsel. Therefore the dismissal of a complaint merely on account of nonappearance of the complainant and his counsel on a particular date of hearing even if there was no pressing reason for the complainant's presence is normally to be avoided. The dismissal of complaint for default ought not to be shortcut only to ensure disposal of cases. This is repeatedly pronounced in various decisions. Therefore, even on the present case on hand as it is noticed that either the Presiding Officer was on leave or the counsel had sought for time and each occasion it was granted by the Court below and hence the summary dismissal of the complaint for non-appearance of the complainant and his counsel on 27.06.2006 does not appear to be any order. Consequently, the present petition is allowed. Order of dismissal of the complaint is set aside. The complaint is directed to be restored to file and the Court below shall proceed in accordance with law and if there is further default on the part of the complainant in prosecuting the complaint, it would be well within the discretion of the trial Court to assign reasons and to pass appropriate orders.