LAWS(P&H)-2015-8-547

NARESH KUMAR VERMA Vs. DIVISH KUMAR

Decided On August 13, 2015
Naresh Kumar Verma Appellant
V/S
Divish Kumar Respondents

JUDGEMENT

(1.) As per the case of the applicant, two cheques amounting to Rs. 1.5 lacs and Rs. 1 lac were issued by the accused-respondent in favour of applicant-complainant-Naresh Kumar Verma for discharge of legally enforceable liability. Said cheques were dishonoured on account of "insufficient funds". A statutory notice was given by the applicant to the accused-respondent and thereafter a complaint was filed on 19.4.2011. On the same day, pre-summoning evidence was recorded and the respondent was summoned. The respondent appeared on 27.7.2011 and was released on bail, the offence being bailable. Thereafter, the case was first adjourned to 21.9.2011 and then to 2.12.2011, on which date, the Court was on leave and the case was again adjourned to 14.5.2012. On 14.5.2012, the notice of acquisition was served upon the respondent and the case was adjourned to 12.9.2012. On that day, an application was moved for exemption by the accused-respondent, which was allowed and the case was adjourned to 25.9.2012. On 25.9.2012, since the accusedrespondent did not appear, his bail was cancelled and warrants of arrest were issued against him for 23.10.2012. On 23.10.2012, again the Court was on leave and the case was adjourned to 18.1.2013, on which date also the Court was on leave and the matter was further adjourned to 15.2.2013. Subsequently, again on 15.2.2013, 11.3.2013 and 7.5.2013, the case was adjourned and thereafter on 26.7.2013 and 5.8.2013 an application for exemption was moved on behalf of complainant, which was allowed.

(2.) Thereafter the case came up for hearing on 6.1.2014 and it was referred to Mediation and Conciliation Centre, Faridabad on the joint request made by counsel for the parties on the ground that there were chances of compromise. However, the compromise could not be effected between the parties and again the matter was adjourned on 22.2.2014 for crossexamination of deferred witnesses. Thereafter the case was adjourned on various dates and ultimately the case was fixed for hearing on 8.7.2014. On 8.7.2014, the complainant could not appear before the trial Court and the case was dismissed because of non-appearance of the complainant.

(3.) The present application for grant of leave to appeal has been filed by the applicant challenging order dated 8.7.2014. Learned counsel for the applicant contends that the case of the applicant was dismissed in default which amounts to acquittal of the accused-respondent and as such the same is violative of mandatory provisions laid under Section 256 Cr.P.C.. Learned counsel further contends that instead of dismissing the complaint in default, the Court should have issued notice to counsel for the complainant. Although the provisions of Section 256 Cr.P.C. are not mandatory but they are directory in nature as has been held in the case of K. Mohanan Vs. Saraswathy,2013 4 RCR(Cri) 864 . Learned counsel also contends that the complainant cannot be made to suffer for the negligence on account of his counsel as the order of dismissal in default amounts to acquittal of respondent in terms of Section 256 Cr.P.C. Learned counsel has also relied upon the judgment in the case of Kulwant Singh Vs. Baihar Singh, 2007 1 RCR(Cri) 283 , in support of his contentions.