Read Order: Parmod Kumar v. Vijay Kumar

Monika Rahar

Chandigarh, April 21, 2022: While dealing with a petition assailing the Order of the Sub-Divisional Judicial Magistrate, Siwani, wherein a Section 138 Negotiable Instruments Act complaint was dismissed due to the non-appearance of the petitioner on the date fixed for the appearance of the respondent-accused through a bailable warrant, the Punjab and Haryana High Court has held that a single default of the petitioner in appearing on the date fixed for the court in the complaint case is no ground to dismiss the complaint. 

The Bench of Justice Karamjit Singh held, “There is nothing to show that there was any mala-fide intention on the part of the petitioner for his absence… No one was prejudiced due to the non-appearance of the complainant or his counsel… as the case was fixed only for the appearance of the respondent-accused through a bailable warrant, on that date.” 

Before the High Court, the petitioner challenged the order dated September 26, 2017, passed by the Sub-Divisional Judicial Magistrate, Siwani, dismissing his complaint for want of prosecution on account of the absence of the petitioner on the date fixed for hearing. 

Essentially, in this case, a complaint before the concerned magistrate was filed by the complainant/ petitioner against the accused-respondent. On the basis of the preliminary evidence led by the petitioner/complainant in the said complaint case, the accused-respondent was summoned by the trial Court. 

The case was fixed for September 26, 2017, for the summoning of the accused/respondent through a bailable warrant. However, as per the case of the petitioner’s counsel, the appellant mistook the date as October 16, 2017, instead of September 26, 2017, and as a result, the petitioner failed to appear in the trial court on September 26, 2017, and consequently, the impugned order was passed. 

The counsel further contended that the non-appearance of the petitioner or his counsel in the trial Court on the date fixed was not intentional or willful but the same happened as the petitioner noted the wrong date. The counsel further contended that earlier to September 26, 2017, the petitioner was regularly appearing in the trial court.

The Court noted at the very outset that the petitioner did not gain anything by remaining absent on the date fixed in the trial Court, and there was nothing to show that there was any mala-fide intention on the part of the petitioner for his absence from the proceedings before the trial Court on the date fixed. Further, the Court also noted that nothing was available on record to show that previously also the petitioner defaulted in a similar manner. 

So, against this backdrop, the Court opined that there was only a single default on the part of the petitioner, on account of which the complaint filed by him under Section 138 NI Act, was dismissed by the trial court for want of prosecution. Justice Singh also asserted that no one was prejudiced due to the non-appearance of the complainant or his counsel on the date fixed as the case was fixed only for the appearance of the respondent-accused through a bailable warrant, on that date. 

Also, from the perusal of the impugned order, the Court noted that none appeared even on behalf of the respondent- accused on that date. Thus, in this light, the Court expounded that the absence of the petitioner on one date in the complaint case is no ground to dismiss the complaint. 

Also, in support of this reasoning, the Court made reference to the judgment of the Supreme Court in Mohd. Azeem v. A. Venkatesh and Another wherein it was held that one singular default in an appearance on the part of the complainant, dismissal of the complaint is not proper. 

Therefore, from the above, the Court found merit in this petition, and the order of the Sub-Divisional Judicial Magistrate, Siwani dismissing the complaint was set-aside subject to a cost of Rs. 5,000/- to be deposited by the petitioner with the District Legal Services Authority, Bhiwani. The complaint was ordered to be restored at the stage from where it was dismissed by the trial Court.  

The petition was allowed. 

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