LAWS(J&K)-2017-11-28

VIJAY KUMAR SHARMA Vs. RAMESH KUMAR

Decided On November 24, 2017
VIJAY KUMAR SHARMA Appellant
V/S
RAMESH KUMAR Respondents

JUDGEMENT

(1.) This Criminal Acquittal Appeal has been filed against the order dated 10.11.2008, passed by the Judicial Magistrate 1st Class (Munsiff), Jammu, whereby the complaint under section 138 of the Negotiable Instruments Act filed by the appellant has been dismissed in default for non-appearance of appellant.

(2.) The appellant has challenged the impugned order dated 10.11.2008 of the Court below mainly on the ground that the order of the trial Court dismissing the complaint in default for non appearance of the appellant is bad in Law and is contrary to the legal preposition thus is liable to be quashed. The order of the trial Court suffers from material illegalities, which is apparent on the face of record, thus is liable to be set aside and the respondent is liable to be punished for the commission of the offence under section 138 of Negotiable Instruments Act. It is further stated that the respondent has been served in the complaint and the matter has been kept for recording the statement of the accused under section 242 of Cr.P.C., 1973. The Magistrate has dismissed the complaint in default for non-appearance of the appellant but the Magistrate has not taken into consideration that the presence of the appellant/complainant was not necessary on that date. The proceedings in the trial Court was kept for the statement of the accused/respondent under section 242 of Cr.P.C., 1973 Thus, the presence of the appellant/complainant was not at all necessary before the trial Court, but the Magistrate has not applied his mind judicially and has passed the order in a casual manner without taking into consideration this fact. It is further stated that the trial Court has not taken into consideration that the day on which the complaint is dismissed in default, the accused/respondent was also not present before the trial Court. Thus, the trial Court has passed a mechanical order without observing the fact that the accused was also not present on that day. Instead of issuing the warrants against the accused/respondent, the complaint was dismissed by the trial Court in default for non-appearance of the appellant. Thus, the order of the Court is arbitrary and illegal, as such, is liable to be set aside.

(3.) I have considered the arguments of the learned counsel for the petitioner and respondent. From the perusal of record of the Court below it reveals that complainant has filed complaint under Section 138 Negotiable Instruments Act against the respondent herein. In the complaint, it has been stated that the respondent owed Rs. 1,00,000/- (Rupees One Lakh) to him and he issued cheque bearing No. 000720, dated 10.02.2007 for an amount of Rs. 1 Lakh to be drawn on Jammu and Kashmir Bank Ltd. Branch Bantalab, Jammu, having Account No. 35. It has been further stated in the complaint that when he presented the cheque in Jammu Rural Bank, Branch Bantalab, Jammu, the same was forwarded to Jammu and Kashmir Bank, Jammu for clearance and the same was returned by the Bank alongwith Memo dated 09.04.2007 with remarks "Account Closed". Thereafter, complainant/petitioner issued a notice to the respondent through his counsel on 23.04.2007 with the request to pay Rs. 1 Lakh to him within 15 days from the date of receipt of legal notice, but the petitioner did not paid the money to the complainant, so the complainant filed complaint on 25.05.2007 with the Chief Judicial Magistrate, Jammu, who transferred the same to Judicial Magistrate 1st Class, Munsiff, Jammu on 03.07.2007. After recording the statement of the complainant, a notice was issued to the accused on 25.05.2007. The accused despite receipt of the notice did not appeared, so bailable warrant was issued against him. Thereafter it further appears that on 01.10.2007 despite furnishing bail bond, the accused did not appeared, so non-bailable warrant was issued on next date of hearing i.e. on 07.11.2007. He appeared and furnished surety bond and personal bond to the tune of Rs. 20,000/- each and was directed to furnish bail bond. This order further reveals that the accused did not furnished surety bond, but was enlarged on personal bond only. Thereafter on 14.12.2007, he also furnished surety bond. Thereafter, the accused did not appeared and on 06.05.2008 non-bailable warrant was issued. It further appears that the matter was transferred to Munsiff, Jammu. Thereafter, accused remained absent till 10.11.2008. When the complainant did not appeared complaint was dismissed due to non prosecution.