GAYANENDRA SINGH RATHORE Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) The present cri. Appeal under Sec. 378(4) of the Criminal Procedure Code, 1973 has been preferred by the appellantcomplainant against the orders dtd. 31/1/2015 and 17/5/2016 passed by the learned Addl. Chief Metropolitan Magistrate (Economic Offences), Jodhpur Metropolitan, Jodhpur in Cr. Case (Complaint) No.964/2010 arising out of complaint for the offence under Sec. 138 of the Negotiable Instruments Act, whereby the accused-respondent No.2 herein has been acquitted from the charge of offence under Sec. 138 of the NI Act.

(2.) Briefly stated, the facts of the case are that the present appellant filed a complaint under Sec. 138 of the NI Act against the respondent No.2 herein for dishonour of cheque bearing no.565251 dtd. 26/2/2006 of ICICI Bank amounting to Rs.1,00,000.00. Thereafter, the learned trial court issued summons to the respondent No.2 vide order dtd. 17/11/2006, but he did not appear before the learned trial court. Ultimately, bailable warrants were issued against the accused, but the same could not be served for 6 years and on the request of the appellant, the trial court initiated proceedings under Ss. 82 and 83 Cr.P.C against the accused vide order dtd. 22/8/2012. However, on 31/1/2015, the learned trial court dismissed the complaint of the appellant for want of prosecution and the accused was acquitted by taking aid of Sec. 256 of Cr.P.C.

(3.) Learned counsel appearing for the appellant submits that non-appearance on the part of the appellant on the relevant date was on account of miscommunication between the appellant and his counsel and the matter was pending consideration before the learned trial court from last 9 years on account of deliberate avoidance of appearance of the accused. It is submitted that if the orders impugned are allowed to stand then there would be great injustice to the appellant as it is the accused who is deliberately avoiding service of summons and if he gets the benefit of acquittal because of an inadvertent mistake on the part of the appellant, it would result in failure of justice because it is one of the cardinal principles of law that personal attendance of the complainant is not necessary on each and every date of hearing of the complaint and therefore, it is prayed that the present appeal may be allowed and the impugned orders may be quashed and set aside. In support of his contentions, the learned counsel relied upon the judgment of this Court delivered in the case of Sushil Kumar Damani Vs. M/s. Sheveta Construction Pvt. Ltd. and Ors reported in 2013(3) RLW 2104 (Raj.).