Harbans Lal, J.@mdashThis application has been moved u/s 378(4) of the Code of Criminal Procedure for grant of leave to appeal against the order dated 08.11.2007 passed by the Court of learned Additional Chief Judicial Magistrate, Faridabad.
2. I have heard the learned counsel for the parties, besides perusing the record with due care and circumspection.
3. Leave granted.
4. The brief facts are that the complainant/appellant paid a sum of Rs.2 lacs to the respondent-accused for the purchase of agricultural land. The latter fraudulently got the agreement executed in his own name instead of the complainant. Feeling tempted by the hiked prices of land, he disposed of the land. He repaid the amount of complainant by way of Cheque bearing No.721917 dated 12.02.2006 drawn on Punjab National Bank, Branch at Railway Road, Faridabad. When the complainant-appellant presented this cheque in the aforesaid bank, the same was dishonoured on 03.05.2006 and it was returned with the remarks "Exceed Arrangemenf''. On receiving the same, the complainant-appellant got issued legal notice through his counsel on 09.05.2006. Despite that, the accused failed to make the payment against the cheque in question within the prescribed period. He requested the accused to repay the said amount, but the same went unheeded. Thus, he has committed the offences punishable u/s 138 and 142 of the Negotiable Instruments Act and 420 of IPC by issuing forged cheque. The complaint was lodged on 07.06.2006. The notice was issued on 06.09.2006. It was on 08.11.2007 that the complaint was dismissed in default vide order Annexure Al.
5. I have heard the learned counsel for the parties. The learned counsel for the appellant has urged with great eloquence that the appellant being unwell on 08.11.2007 could not put in his appearance as according to the medical certificate, complete bed rest was advised to him and due to his non-appearance though unintentional, his complaint was dismissed.
6. To tide over this submission, the learned counsel for the accused-respondent maintained that neither the complainant, nor his counsel put in their appearance and for that reason, the Court was left with no other alternative except to dismiss the complaint.
7. I have well considered the rival contentions.
8. The impugned order reads in the following terms:-
Despite several calls given since morning, neither the complainant turned up, nor his counsel responded to the calls. In these circumstances, I dismiss the present complaint for want of prosecution. File be consigned to the record room.
9. The appellant has placed on record Annexure Al, the medical certificate purportedly issued by Dr.(Captain) Gopal Bhagat, CMO, PHC Mehrauli. As per the same, the complainant was advised complete bed rest from 7th to 9th November, 2007. This certificate having been issued by the Chief Medical Officer, Primary Health Centre, Mehrauli can be relied upon without any demur. It would be too harsh on the appellant to non-suit him, merely for his non-appearance on one date, in view of the observations rendered by this Court in Purushotam Mantri v. Vinod Tondon alias Hari Nath Tandon, 2008 (4) CCC 064 (P&H) : 2008 (3) PLR 595 (P&H). It is an accredited rule of law that a party should not suffer because of the negligence on the part of his/her counsel. Ostensibly, on 08.11.2007, the appellant was confined to bed as absolute bed rest was advised to him. So, no fault can be attributed to him.
10. In view of the above discussion, this appeal is accepted setting aside the impugned order dated 08.11.2007 rendered by the Court of learned Additional Chief Judicial Magistrate, Faridabad who is directed to restore the complaint in question to its original number and to proceed with the trial in accordance with law.
The parties through their respective counsels are directed to put in their appearance before the learned aforesaid Court on 24.03.2009 at 10:00 A.M. Registry is directed to transmit a copy of this judgment to the Court of learned Additional Chief Judicial Magistrate, Faridabad well before the said date.
