Case Note & Summary
The appellant, M/s Wibro Construction Co., filed a criminal appeal challenging the order dated 20.06.2017 passed by the learned Judicial Magistrate, First Class, Ponda, which dismissed the appellant's complaint for non-prosecution. The appellant contended that he was diligent in pursuing the matter and that on a particular date he had instructed his advocate to seek a long date and make alternate arrangements. However, the advocate took a short date without informing the appellant, resulting in his non-appearance. The appellant argued that there was no reason for the Trial Court to hastily conclude that he was not interested in the matter. The respondent argued that the appellant was not diligent. The High Court held that the appellant's explanation constituted sufficient cause for his absence, as the fault lay with the advocate, not the appellant. The Court found that the appellant was otherwise diligent and had taken steps to change his advocate. Consequently, the impugned order was quashed and set aside, and the complaint was restored to the file of the learned Judicial Magistrate, First Class, Ponda, to be proceeded with in accordance with law.
Headnote
A) Criminal Procedure Code - Dismissal for Non-Prosecution - Section 256 CrPC - Sufficient Cause - The appellant's absence was due to his advocate taking a short date without informing him, which constituted sufficient cause for non-appearance. The Trial Court erred in hastily concluding lack of diligence without considering the explanation. (Paras 1-3)
B) Criminal Procedure Code - Restoration of Complaint - Section 256 CrPC - Diligence - The appellant was otherwise diligent in pursuing the matter and had taken steps to engage another advocate. The dismissal order was set aside and the complaint was restored. (Paras 2-3)
Issue of Consideration
Whether the learned Judicial Magistrate, First Class was justified in dismissing the complaint for non-prosecution under Section 256 of the Code of Criminal Procedure, 1973, and whether the appellant had shown sufficient cause for his absence.
Final Decision
The appeal is allowed. The impugned order dated 20.06.2017 passed by the learned Judicial Magistrate, First Class, Ponda is quashed and set aside. The complaint is restored to the file of the learned Judicial Magistrate, First Class, Ponda to be proceeded with in accordance with law.
Law Points
- Dismissal for non-prosecution
- Sufficient cause for restoration
- Diligence of complainant
- Criminal Procedure Code
- 1973 Section 256
Case Details
2020 LawText (BOM) (01) 112
Criminal Appeal No. 60/2019
Ms. Asha A. Desai for the Appellant, Shri O. Kulkarni for the Respondent
M/s Wibro Construction Co., Represented by its Proprietor, Mr. K. Abdulla
Mr. E.K. Joshy, Partner, Amal Construction
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Nature of Litigation
Criminal appeal against dismissal of complaint for non-prosecution.
Remedy Sought
Appellant sought quashing and setting aside of the order dated 20.06.2017 dismissing the complaint for non-prosecution, and restoration of the complaint.
Filing Reason
The appellant's complaint was dismissed for non-prosecution due to his absence on a date when his advocate took a short date without informing him.
Previous Decisions
The learned Judicial Magistrate, First Class, Ponda dismissed the complaint for non-prosecution on 20.06.2017.
Issues
Whether the Trial Court was justified in dismissing the complaint for non-prosecution under Section 256 CrPC.
Whether the appellant had shown sufficient cause for his absence.
Submissions/Arguments
Appellant argued that he was diligent, instructed advocate to seek long date, but advocate took short date without informing him, constituting sufficient cause.
Respondent argued that appellant was not diligent and there was no basis to quash the order.
Ratio Decidendi
The absence of the appellant due to his advocate taking a short date without informing him constitutes sufficient cause for non-appearance. The Trial Court erred in dismissing the complaint for non-prosecution without considering the explanation, as the appellant was otherwise diligent.
Judgment Excerpts
The appellant challenged the order dated 20.06.2017 passed in the Criminal Appeal No.OA/446/NIA/2015/B passed by the learned Judicial Magistrate, First Class, Ponda on the premise that the learned Trial Court had totally ignored the fact that the appellant was otherwise diligent in the pursuit of his matter and that on a particular date he had instructed his advocate to seek a long date and that he would make alternate arrangement for the matter to be conducted at his instance.
There was no reason for the learned Judicial Magistrate, First Class to hastily conclude that the complainant was not interested in the pursuit of the matter and to dismiss the complaint for non prosecution.
Procedural History
The appellant filed a complaint before the Judicial Magistrate, First Class, Ponda. The complaint was dismissed for non-prosecution on 20.06.2017. The appellant filed Criminal Appeal No. 60/2019 before the High Court of Bombay at Goa challenging the dismissal order.
Acts & Sections
- Code of Criminal Procedure, 1973: Section 256
