BHASKAR PRASAD SHALI Vs. R. ARUL

JUDGEMENT

(1.) This appeal is by the complainant, challenging the dismissal of the complaint filed by him against respondent/accused for the offence punishable under Sec. 138 of N.I.Act, contending that the cheque issued by the respondent/accused towards repayment of legally recoverable debt came to be dishonored. After issuing legal notice and on failure of respondent/accused to pay the amount due, he filed complaint under Sec. 200 Cr.P.C. The trial Court took cognizance and issued summons to the accused. In fact the summons which was issued and re-issued is returned unserved. On 15/4/2023, the Trial Court dismissed the complaint for non prosecution by observing that for six months, the complainant has not taken steps which is not correct. The complainant has taken steps for issue of summons through Court, by hand and also through RPAD. Without providing reasonable opportunity, the trial Court has erred in dismissing the complaint and prays to allow the appeal and remand the matter to disposal in accordance with law.

(2.) Since the complaint came to be dismissed before appearance of the accused, notice to respondent/accused is dispensed with.

(3.) From the perusal of the order sheet, it is evident that on 26/7/2022, the Trial Court has taken cognizance and ordered for issue of summons to the accused returnable by 27/9/2022. On that day, the Trial Court has ordered for re-issue of summons returnable by 7/12/2022. The order sheet state that it is returned unserved. Therefore, the Trial Court has ordered issue of summons through RPAD returnable by 14/2/2023. The order sheet dtd. 14/2/2023 state that the summons sent to accused through RPAD is returned as refused and the Trial Court has observed that under Sec. 27 of the General Clauses Act, 1897, it is deemed service and ordered for issue of NBW returnable by 15/4/2023. On that day, by observing that complainant has not furnished PF, the Trial Court has proceeded to dismiss the complaint. The order sheet indicate that the complainant has diligently prosecuted the complaint. Only on 15/4/2023, noting the absence of complainant and his counsel, the Trial Court has dismissed the complaint. Therefore, the observation of the Trial Court that the complainant was not diligent and since six months steps have not been taken, is not correct. In the circumstances, the impugned order is liable to be set aside and complainant be given reasonable opportunity to prosecute the complaint and accordingly, I proceed to pass the following: