Full Text
HIGH COURT OF DELHI
CRLX.P.475/2016
KNS CERAMIC WORLD , Petitioner
Through: Mr. Hitesh Kumar Bhardwaj, Advocate.
Through: Mr. Mukesh Kumar, APP for the State.
14.02.2017 Though notice was directed to be issued to respondent No.2 vide order dated 07.09.2016 and the petitioner also filed the process fee, service report is awaited.
Learned counsel for the petitioner has brought to the attention ofthis
Courtajudgment ofthis Court mArun KumarSharma Fs.State & Others, 2012(4)JCC 302. Learned counsel, by placing reliance on this decision, submits that since the complaint preferred .by the petitioner has been dismissed by the impugned order on account ofthe default ofthe petitioner in not appearing before the Court on 30.05.2016,even ifthis Court were to
2017:DHC:8609 find meritin this petition and allow the same by setting aside the order dated
30.05.2016,the same would not cause any prejudice to the respondent as the impugned order dated 30.05.2016 has not been passed on merits, and this
Court while setting aside the order would also not be dealing with the merits ofthe ease,and thus,it is not imperative for this Courtto issue notice to the respondent in the present petition.
Learned counsel further submits that in the present case, though the respondent had been summoned by the learned Magistrate vide order dated
27.01.2016,and steps were taken for issuance ofsummons to the respondent on one occasion, the accused had not been served with the summons, and consequently, fresh steps were directed to be taken vide order dated
29.03.2016. However,steps were not taken on the second occasion and the complaint was dismissed in default on 30.05.2016.
In Arun Kumar Sharma (supra), this Court, inter alia, observed as follows:
"1. Despite a pass over, none has appearedfor respondent no.2. Accordingly, this Court has no other option but to proceed ahead with the matter. It ispertinent to mention that a
Division Bench ofthis Courtin the case ofHindustan Domestic
Oil and Natural Gas Co.(Bombay)Ltd. and Ors. Vs. State and
Anr., Crl. M.C. 1737/2011 (reported in 2012 (4) JCC 2310) decided on 3rd August, 2012 has held that in revision notice under Section 401(2)Cr.B.C. is not mandatory to the respondent in case where revision has beenfiled challenging the order of dismissal on account of default and for non- prosecution. The relevant portion ofHindustan Domestic Oil and Natural Gas Co. (Bombay) Ltd. and Ors. (supra) is reproduced hereinbelow:—
ORDER
21. The decision of Delhi High Court in J.K. International(supra) is clearly distinguishable. In p: the said case, the complaint was dismissed in default and for non-prosecution as the complainant was not present and the processfee had not been paid. In said circumstances, it was held that Section 401(2)would not he applicable and no notice was required to be issued. An order dismissing the complaintfor non-prosecution or in default, which is made the subject matter of the revision, cannot be equated with "revision petitions" that arefiled on substantive grounds or touch on the merits. Courts have recognized difference between orders ofthis nature which are procedural andsubstantive orders.[See Grindlays Hdnk Ltd. vs. Central Government Industrial Tribunal and Ors. 1980 (Supp) SCC 420], which draws distinction between procedural and substantive review. The order dismissing the complaintfor default or non-prosecution does not touch upon the factual or legal merits of the complaint. The said order is a reflection on or about the conduct of the complainant in. the proceedings before the court and the opinion formed by the court about the said conduct. Such orders if they do not reflect and take into consideration the merits of the case or the complaint will not require notice to the opposite side when examined in a revision petition. Such orders are notprejudicial to the other side as they do not reflect and take into consideration merits and demerits ofthe allegations. When a revision petition is filed against an order dismissing a complaintfor non-prosecution or in default, and the same is allowed, it is not an order that causes prejudice to the opposite side, if there is no application of mind or reflection on merits whatsoever. This distinction and aspect has to be keptin mind,
2. Keeping in view the aforesaidjudgment, infact, no notice is required to be issued to respondents. However, it ispertinent to mention that in the present case respondent-company has alreadystandserved." Consequently, service of notice in the present petition to the respondent is dispensed with. Leave granted. Crl. Appeal No. /2017 (to be registered and numbered) & Crl. M.A.No.13946/2016 Letthe appeal be registered and numbered. The appellant has preferred the present appeal, as noticed above, with application for condonation of delay of[6] days in filing the same vide Crl. M.A. No.13946/2016 to assail the order dated 30.05.2016 dismissing the appellant's complaint for default on 30.05.2016 passed by the learned ACMM (Shahdara) in the appellant's complaint being CC No.762/2015 preferred by the appellant under Section 138 ofthe NI Act. The delay of[6] days has been explained by the petitioner by stating that due to some misunderstanding, the file ofthe case was kept with other running files of the same petitioner and was not traceable, though the leave petition was ready for being instituted within the stipulated period. The application is supported by the affidavit of Sh. Shanti Lai Porwal, the partner of the appellant. The delay being only six days,and on account ofthe factthat the same has been explained satisfactorily,the same is condoned. A perusal of the order sheets recorded by the learned Magistrate shows that the appellant was diligent in pursuing the complaint, since the appellant even took steps for issuance of summons to the respondent in terms of the order dated:27.01.2016. The explanation furnished by the appellantfor non-appearance before the learned Magistrate on 30.05.2016 is also highly plausible. It is pointed out that the appellant had preferred two complaints under Section 138 simultaneously being CC No.764/2015 and CC No.762/2015. The appellant points out that both these complaints were listed before the same Court and were taken up simultaneously on each and every date. In CC No.764/2015,when the case was taken up on 29.03.2016, the date was given as 31.05.2016. The appellant assumed that the date in CC No.762/2015 would also be the same. However, it appears that on account ofa typographical error,the same was recorded as 30.05.2016. The appellant has also placed on record the photocopy of the case diary maintained by the counsel in support ofthis submission. The explanation furnished by the appellant appears to be completely plausible. In view of the aforesaid, the impugned order dated 30.05.2016 dismissing the petitioner's complaint case No.762/2015 is set aside and the complaint is restored to its original number. The said complaint be listed before the Trial Court on 07.03.2017. The case shall now proceed from the stage ofissuance ofsummons to the respondent.
VIPIN SANGHI,J FEBRUARY 14,2017 B.S. Rohella