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S.138 NI Act DD (Pre Summon)

The petitioner filed a complaint under Section 138 of the Negotiable Instruments Act against the respondent, which was dismissed by the Magistrate for non-appearance. The petitioner filed an application to restore the complaint, which was also dismissed. The High Court set aside the orders of the Magistrate dismissing the complaint and application for restoration. Since preliminary evidence had already been recorded, the Magistrate ought to have considered the evidence on merits instead of dismissing in default. The Magistrate was directed to proceed further and pass a legal order after giving both sides a hearing.

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60 views

S.138 NI Act DD (Pre Summon)

The petitioner filed a complaint under Section 138 of the Negotiable Instruments Act against the respondent, which was dismissed by the Magistrate for non-appearance. The petitioner filed an application to restore the complaint, which was also dismissed. The High Court set aside the orders of the Magistrate dismissing the complaint and application for restoration. Since preliminary evidence had already been recorded, the Magistrate ought to have considered the evidence on merits instead of dismissing in default. The Magistrate was directed to proceed further and pass a legal order after giving both sides a hearing.

Uploaded by

Divyanshu Singh
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
Available Formats
Download as PDF, TXT or read online on Scribd
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SCC Online Web Edition, © 2022 EBC Publishing Pvt. Ltd.

Page 1 Wednesday, January 19, 2022


Printed For: , Dr. RML National Law University
SCC Online Web Edition: http://www.scconline.com
© 2022 EBC Publishing Pvt. Ltd., Lucknow.
-----------------------------------------------------------------------------------------------------------------------------------------------------------

1998 SCC OnLine P&H 1477 : (1999) 1 RCR (Cri) 838 : (1999) 2 BC 170

Punjab and Haryana High Court


(BEFORE R.L. ANAND, J.)

Anil Bassi … Petitioner;


Versus
Vishnu Dass … Respondent.
Crl. Revision No. 533 of 1998
Decided on December 10, 1998

Page: 839

The Judgment of the Court was delivered by

R.L. ANAND, J.:— The learned counsel for the petitioner relies upon Ajay Khurana v.
Anil Cloth House, 1998 (3) RCR (Crl.) 232 : 1998 (2) RCC 623, whereas the learned
counsel for the respondent relies upon Major General A.S. Gauraya v. S.N. Thakur,
1988 (1) Recent Criminal Reports 3. The submission of the learned counsel for the
respondent is that once a complaint has been dismissed for want of prosecution, the
Magistrate has no right to restore the complaint and the order of the Magistrate in
rejecting the application of the petitioner for the restoration of the complaint is totally
justified. The citation which has been relied upon by the learned counsel for the
respondent is distinguishable on facts. The Hon'ble Supreme Court was considering an
issue whether the Magistrate has inherent power to pass an order for the restoration of
a complaint and in that light the dictum of the Hon'ble Supreme Court was in the
negative.
2. So far as the citation which has been relied upon by the counsel for the petitioner
is concerned, it has applicability to the facts in hand as the Magistrate dismissed the
complaint under Section 138 of the Negotiable Instruments Act of the petitioner at the
early hours even against the directions of the High Court Rules and Orders. He ought
to have waited for the complainant. The preliminary evidence had already been
recorded by the learned Magistrate and in these circumstances the only option left
with the Magistrate was either to dismiss the complaint on merit or to summon the
accused under Section 204 Cr.P.C. The observations of her Lordship are contained in
para Nos. 1 and 3 of the judgment relied upon by the counsel for the petitioner which
read as under:—
“Complainant-petitioner filed the complaint under Section 138 read with Sections
141 and 142 of the Negotiable Instruments Act, 1881. On 28.3.1997 preliminary
evidence of the complainant was recorded by the trial Court and the case was
adjourned to 29.7.1997 for arguments with regard to summoning of the accused.
On this date, as the complainant did not appear before the trial Magistrate till 9.20
a.m., his complaint was dismissed vide order dated 29.7.1997. Petitioner's learned
counsel relying on Kuldip Singh v. Harnam Singh, 1982 Criminal Law Times 289,
contends that in such circumstances the learned Magistrate had no jurisdiction to
dismiss the complaint; he ought to have considered the evidence and should have
passed the necessary order to summon the accused or could have dismissed that
complaint or merits.
SCC Online Web Edition, © 2022 EBC Publishing Pvt. Ltd.
Page 2 Wednesday, January 19, 2022
Printed For: , Dr. RML National Law University
SCC Online Web Edition: http://www.scconline.com
© 2022 EBC Publishing Pvt. Ltd., Lucknow.
-----------------------------------------------------------------------------------------------------------------------------------------------------------

2. xx xx xx
3. Petitioner-complainant has filed copy of the second order dated 29.7.1997
passed by the learned trial Magistrate. Even if he has not challenged that order
in this revision, he can still challenge the first order passed by the trial
Magistrate on 29.7.1997 dismissing his complaint for his non-appearance. The
learned Magistrate after recording the complainant's preliminary evidence ought
to have considered the evidence and should have passed the necessary order
either summoning the accused or dismissing the complaint on merits, but he
chose to dismiss the complaint in default for non-appearance of the complainant.
But from the other order passed on 27.9.1997 itself it is evident that at 11.30
a.m. on that very date, the complainant appeared before the Court, filed an
application to restore his complaint, but that too was dismissed. It further
reveals that the petitioner-complainant's complaint was dismissed in the early
part of the day as during those days, the Court hours were from 7.00 a.m. to
1.00 p.m.”
3. In this view of the matter, the present revision succeeds. The orders of the
learned Magistrate dismissing the complaint as well as the application for restoration
of the complaint are set aside and the Magistrate is directed to proceed further and
pass a legal order thereon after giving a right of hearing to the lawyer of the
petitioner. The revision stands allowed.
4. The petitioner shall appear before the learned Magistrate on 23.12.1998.
Revision allowed.
———
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or omission or for any action taken or omitted to be taken or advice rendered or accepted on the basis of this casenote/ headnote/ judgment/ act/
rule/ regulation/ circular/ notification. All disputes will be subject exclusively to jurisdiction of courts, tribunals and forums at Lucknow only. The
authenticity of this text must be verified from the original source.

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