Karnataka High Court: While deciding the instant appeal for restoration assailing the order passed by the Trial Court wherein the case was dismissed due to non-prosecution, the Bench of P.N. Desai, J., observed that it is the duty of the Court to record plea of the accused by putting substance of the accusation against him. The complainant’s presence/ personal attendance at the time of recording the plea of the accused is not essential at all. It was held that simply in order to dispose of the cases, a complaint should not be dismissed when there is no necessity of the complainant’s presence.
The appellant (complainant before the Trial Court/JMFC) had filed a private complaint against the respondent/accused under the provisions of Section 138 of Negotiable Instruments Act, 1881. However, even after recording the sworn statement, the case was dismissed for non- prosecution as the complainant had not appeared before the Court.
Aggrieved with the said the dismissal, the appellant challenged the order via revision petition under Section 397, CrPC before the Sessions Judge, who while allowing the petition, directed to restore the case. The respondent/accused then filed a petition for quashment before the High Court and the same was allowed. Aggrieved with the High Court’s decision, an instant appeal was preferred.
The counsel for the appellant contended that the Trial Court did not dismiss the case on merits rather it was dismissed for default.
Per contra, the respondent argued that there was inadvertent delay in filing the appeal and that the appeal does not have any valid or detailed reasons/grounds showing the need for restoration.
Perusing the facts and contentions presented, the Court noted that the respondent/ accused did not appear before the Courts for many years. Though the case is of 2013, the respondent appeared in 2018 and when the matter was posted for recording of plea, the Trial Court/JMFC dismissed the matter due to non-appearance of the complainant.
The Court noted the delay of 44 days in filing the revision petition that was condoned by the Sessions Judge. The Court also noted the observations made in Collector (LA) v. Katiji, (1987) 2 SCC 107, wherein it was observed that, “Judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so”.
The Court thus pointed out that the Trial Court/JMFC did not take into consideration that the respondent/ accused was continuously dodging the Courts for 5 years after the complaint was filed and kept the case pending for the want of his appearance, and then dismissed the complaint when the appellant failed to make an appearance.
The Court pointed out Section 256, CrPC which deals with ‘non-appearance or death of the complainant’ and noted that the Court has to exercise discretion judiciously and stated that the Section’s proviso clearly indicates that if the Court is of the opinion that personal attendance of the complainant is not necessary, then the Magistrate may dispense with the attendance and proceed with the case.
The Court noted that in the instant case, during the stage of recording of accused person’s plea, the appellant was represented by his counsel. At the stage of recording plea, a complainant’s presence is not essential. Therefore, the Trial Court ought not to have dismissed the case. Thus, the High Court allowed the instant appeal.
[Nagaraj v. Ishwar, 2022 SCC OnLine Kar 1586, decided on 30-09-2022]
Advocates who appeared in this case :
Santosh Patil, Advocate, for the Appellant;
M.A. Jagirdar and G.B. Yadav, Advocates, for the Respondent.
*Sucheta Sarkar, Editorial Assistant has prepared this brief.
