Case Note & Summary
The appellant, M/s. Shree Datta Fertilisers & Chemical Pvt. Ltd., a private limited company, filed a complaint under Section 138 of the Negotiable Instruments Act, 1881, against the respondent-accused, Dhanraj O. Mor, proprietor of Agrawal Krishi Kendra, alleging that a cheque for Rs. 2,38,861 drawn in favour of the appellant was dishonoured due to insufficient funds. A demand notice was served by RPAD and under postal certificate, but the accused failed to pay. The complaint was represented by Rajesh Bhagchand Rathi, a power of attorney holder, and the company also engaged an advocate. On the hearing date of 29/8/2005, both Mr. Rathi and the advocate were absent, leading the Judicial Magistrate First Class, Court No. 1, Amravati, to dismiss the complaint for default. The appellant appealed to the High Court, arguing that the dismissal was not on merits and that an opportunity should be given. The High Court, considering the interest of justice, allowed the appeal and restored the complaint, subject to the appellant depositing costs of Rs. 1,000 in the trial court, which would be payable to the accused as a condition for contesting the complaint on merits.
Headnote
A) Criminal Procedure - Restoration of Complaint - Dismissal for Default - Negotiable Instruments Act, 1881, Section 138 - Complaint under Section 138 NI Act was dismissed by JMFC due to absence of complainant's representative and advocate on date of hearing - High Court allowed appeal and restored complaint subject to deposit of Rs. 1,000 as costs payable to accused - Held that in the interest of justice, an opportunity of hearing on merits should be given (Paras 2-4).
Issue of Consideration
Whether the complaint under Section 138 of the Negotiable Instruments Act, 1881, dismissed for default due to absence of complainant and his advocate, should be restored for hearing on merits.
Final Decision
The appeal is allowed. The impugned order of dismissal is set aside. The complaint is restored to its original number. The appellant shall deposit costs of Rs. 1,000/- (Rupees One Thousand Only) in the trial Court which will be payable to the accused as condition precedent for contesting the complaint in the trial Court.
Law Points
- Restoration of complaint dismissed for default
- Opportunity of hearing
- Condition of costs
Case Details
2012 LawText (BOM) (02) 126
Criminal Appeal No. 460 of 2006
Mr. N. R. Saboo for the Applicant, Mr. S. S. Doifode, learned APP for the Respondent-State
M/s. Shree Datta Fertilisers & Chemical Pvt. Ltd.
Shri Dhanraj O. Mor, Proprietor of Agrawal Krishi Kendra, and State of Maharashtra
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Nature of Litigation
Criminal appeal against dismissal of complaint under Section 138 of the Negotiable Instruments Act, 1881 for default.
Remedy Sought
Appellant sought restoration of the complaint for hearing on merits.
Filing Reason
The complaint was dismissed by the JMFC due to absence of the complainant's representative and advocate on the date of hearing.
Previous Decisions
The complaint was dismissed by the Judicial Magistrate First Class, Court No. 1, Amravati on 29/8/2005 for default.
Issues
Whether the complaint under Section 138 of the Negotiable Instruments Act, 1881, dismissed for default due to absence of complainant and his advocate, should be restored for hearing on merits.
Submissions/Arguments
Learned Advocate for the complainant submitted that complainant be given an opportunity of hearing on merits since the complaint was not decided on merit due to absence of Mr. Rathi and Advocate engaged by complainant and which was not continued absence from the trial Court.
Ratio Decidendi
In the interest of justice, an opportunity of hearing on merits should be given to the complainant when the dismissal was not on merits and the absence was not continued. However, such restoration may be subject to payment of costs to the accused.
Judgment Excerpts
Under these circumstances, in the interest of justice, an opportunity of hearing is required to be given to the complainant to contest the complaint on merits and I am inclined to allow the appeal provided that the appellant shall deposit costs of Rs. 1,000/- (Rupees One Thousand Only) in trial Court which will be payable to the accused as condition precedent for contesting the complaint in the trial Court.
Procedural History
The appellant filed a complaint under Section 138 of the Negotiable Instruments Act, 1881 before the Judicial Magistrate First Class, Court No. 1, Amravati. On 29/8/2005, due to absence of the complainant's representative and advocate, the complaint was dismissed for default. The appellant then filed Criminal Appeal No. 460 of 2006 before the Bombay High Court, Nagpur Bench, which was allowed on 22/2/2012.
Acts & Sections
- Negotiable Instruments Act, 1881: 138
