Full Text
CRL.L.P.85/2014
RAJ KISHORE SHARMA Petitioner
Through: Mr.Rajni Kant,Advocate
Through: Ms.Kusum Dhalla,APP forthe -i'" ^f il^ShJKa^Kashy^,son ofrespondent
CRL.L.P..118/^014 7. n, r"'' "f- % ' ';v Ui- 'Ft,, ' T.
F ft' ' \l RAJ KISHORE SHARMA /' .|.. Petitioner
Through:^ ]; iMr'.Rajni Kant,Advocate]
STATE &'EAXMTT!3; ...^/Respondents .;C^ifeough: 'Ms.^usurn;L)halIa:;AdPP forthe fKp^h:Ka|4|Kashyajp,son ofrespondent
RAJ KISHORE SHARMA Petitioner
Through: Ms.Alpana Pandey,APP forthe State/R-1.
CH.LP.Nos.85,118,119c& 120of2014 p^ge]of9 2016:DHC:8896
AND
V
Sh.Kapil Kashyap,son ofrespondent No.2.
RAJ KISHORE SHAEMA Petitioner
Through: _Ms^lpanaPandey,APPforthe State
PRATIBHA RANI^^^Oran i f' ".ft.--"' ft -.
' ftft ftft // 'ypj i-s4; , t ''''' 1 -rT r CrI.M.A.No.l659/20i4in Crl.llMo^WL4
Crl.M.A.No.2320/2014in CrI.L.F.N(£ljl^i014 Ij
Crl.M.A.No.2325/2014in CrI.L.PlNo.M9ya014 /;
Crl.M.A.No.2327/2014 in Crl.ll^M.i2MQ14 «
'ft. /•
JUDGMENT
1. For the reasons stkedJtftnefttppM^ibnsf|hC in filing the leave petitions is condoned®
2. Applications stand dispp^ed Crl.L.P.No.85/2014 Crl.L.P.No.118/2014 Crl.L.P.No.l19/2014 Crl.L.P.No.120/2014
1. Leave granted. The Registry is directed to register the petitions as appeals.
2. The appellant Raj Kishore Sharma is aggrieved by the order dated 19.09.2012 whereby the Complaint Cases No.207/1, 105/1, 107/1 & 106/1 CrI.LP.Nos.85,118,119& 120of2014 Page2of[9] v[7] filed by him against the respondentNo.2 herein for committing the offence punishable under Section 138/142NI Acthave been dismissedin default by learned Metropolitan Magistrate.
3. Theimpugned order dated 19.09.2012 waschallenged bythe appellant by filing revision petitions,which were dismissed as not maintainable by the learned ASJ vide order dated 27.07.2013.
4. Thereafter the appellant filed these appeals impugning the order of acquittal passed by learned MM while dismissing in default the complaint cases filed by him for the offences punishable.under>Section 138/142NI Act. f/y y..a ^ "-v.
5. Notice oftheiiefitioriiwas issued to resporidenfiNb^2.
6. RespondentNp^^failed tdiappear b^h^r sonTiamely Kapil Kashyap //.-A-''' " had appeared ohTbf^March, 2016. The son of the relpprident No.2 was /■• "■ ^ * I '"'I directed to produce the respondentNo.2 in the Court today.:J ^. ■ ' 11
7. Today again Sh.KapilKashy^p|§pn;OfrespondentNo.2J|has appeared and statedthat his mother is indispbleSiMSt^ihe is unable to appear today. A' i'7 //
8. Learned counsel f6fffespdh&eftf#b..M'd^ 3.15 pmbut thereafter neither tlie.^pm-o'f the respondent'Noi£''iior'her counsel has appeared. ""arw- ^
9. The impugned order wherebpthe'complaint cases filed by the appellant have been dismissedin default, reads as under 19.09.2012 at 1145pm Pr:- Nonefor the complainant despite repeatedcalls. Accusedispresent on bail. The matter is listed today for final arguments and for appearance of the complainant. The complainant has remained Crl.LP. Nos.85, 118, 119 & 120 of2014 Page[3] of[9] V"\ physically absentin this Courtsince 23.04.2012onfour occasions including today. In between, on 07.06.2012 exemption request was allowed at behest ofcounselfor the complainant. Despite issuance ofCourt notice andservice thereof the complainant had not appeared. Be put up at 2 pm for appearance of the complainant. Sd/- (ACMM-01Delhi) 19.09.2012 At[2].50pm Pr: Noneforcomplai};iantA H | Sh.AdarsHSainLcdunselfor-accused wifh accused. rr, t, V roday,me matter is aff:^'i)^^cffinal arguments. The complainantfids chosen before thi fCourt despite opportunitiesgiven by tMsCdm^if%dve examinedthe complaint, II Kf ^ I I ^''1 || II evidence{Ion record and ddfiiiHehts with a view to ^-ascertain whether the personal af^ddcfipe^pf the complainant can be dispensed^ithintefm^^pf^sq)^ Cr.P.C.andIam ofthe consider^jy0w^cdfli^pM^el0e^^ or hiscounselisfcqnirepforpypceedin^ ' ¥V - - In the given circimsidri^sf^y:6ptw^ left with the Court, keeping in view the absence of the complainant is to proceed against him under Section 256(1)Cr.P.C. As the complainant has failedto appear,thepresentcomplaintcase is dismissedin default ofappearance. In result, accusedis acquitted. File be consigned to recordroom. Sd/- (ACMM-OIDelhi) 19.09.2012' Crl.LP.Nos.85,118,119&120of2014 ^
10. The proceedings dated 19.09.2012 reveals that the case was at the stage of final arguments. If for some reason, the complainant was not present, the Court could have proceeded to dispose of the matter after considering the evidence adduced by the parties. At the stage of final arguments,for non-appearance ofthe complainant,the complaint cases could not have been dismissed in default.
11. In the complaint is tried as'summary trial' under Section 256 ofCode ofCriminalProcedure,the Magistrate has discretion to dismiss the complaint ifon any datefixed for hearihg the:^cpmplainayht appear inthe Court. Atthe sametime,ifthe Magistrlte"^findsthaH^^ is;.sdme reason orthatthe presence of the compldihant was^ not required, he'dm his^ discretion can adjourn the complaint^' J,'* \\
12. A perusaljofthe order dated 22.08.2012, by which the case was listed for 19.09.2012,non which date it Mhlet(|lie dismissed in default, shows it H J'/aM m'l. II was listed final arguments for wftichpefldha^^^^^^ ofthe complainant was not required.
13. Section 143 df:M>^0t thatthd'ca^^mnder Section 138 NI Act shall be tried summarily b;^^!':a£jftdiciSf^a*g^^^ Class or by a Metropolitan Magistrate and the pfdviMbns of Sections 262 to 265,(both inclusive)ofthe Code ofCriminal Procedure shall,as far as may be,apply to such trials.
14. Code of Criminal Procedure in Chapter XXI prescribes procedure to be followed in Summary Trials. Section 262 CrPC provides that the procedure specified for trial ofsummons case shall be followed, except as mentioned in Section 262 Sub-Section (2). The sentence which can be awarded by following the summary trial procedure in a case under Section Crl.L.P.Nos.85,118,119&120of2014 ~ Page5of[9] 138 NI Act is governed by Section 143(1)ofNI Act.
15. In the case Rajesh Agarwal vs. State & Anr. 171 (2010) DLT 51 while disposing of three petitions i.e. Crl.M.C. No.1996/2010, 1700/2009 and 1397/2010,feeling eoncemed that the High Court is being flooded with the petitions under Section 482 CrPC for quashing the complaints under Section 138 NI Act and the grounds on which generally the quashing was sought,the learned Single Judge highlighted the objeetive ofthe proeeedings under Section 138 NI Act. The learned Single Judge also eonsidered that this situation has arrived,jfb? th^ reason th&The.,lower Courts are not following the mandate^'ofthe;'Statute ofconducting-trial^ofthe cases under Seetion 138 ofNTAct(in a summary-manner and despite amendment in NI Act, continue trying/Lthese cases.as.summons trial cases!and|;a long drawn i j f.•i.fi "rt yi'5f V 1' proeedure is followed. Para 17 ofthe report giving summary tpial procedure to befollowed for offenees under Se.bt1op{ll38 NI Act,is extracted as under: i 7 I v'l y S..'A f V, ^ f I '17. The i^ummary trial^rocWufe>to 'befollowedforjbffences underSection 1381f^}Aff^oiddthusfe gsfifder: f Step[1]:On tPki^t^^mplqi^ispr^seftiedf^fi^complaint is accompanied by^i^dc^^^^^d^^fji^tjfi^f^ef^oncerned MM shall scrutinize the Cdmplgintx&rdoeupjepts'and ifcommission ofoffence is made out, taM'cdghizdnce & direct issuance of summonsofaccused, against whom case is made out. StepII:Ifthe accusedappears, the MMshallaskhim tofurnish bail bond to ensure his appearance during trial and ask him to take notice under Section 251 Cr.P.C. and enter his plea of defence and fix the case for defence evidence, unless an application is made by an accused under Section 145(2)ofN.I. Actfor recalling a witnessfor cross examination on plea of defence. Crl.L.P. Nos.85, 11.8, 119&120of2014 ^ StepIII:Ifthere is an application underSection 145(2)ofN.I Actfor recalling a witness of complainant, the court shall decide the same, otherwise, it shall proceed to take defence evidence on record and allow cross examination of defence witnesses by complainant. StepIV:To heararguments ofboth sides. Step V:Topass order/judgment. '
16. The learned Trial Court was required to follow the procedure prescribed and dispose ofthe ease,pn-;merits^ ofevidence led in i)ijl! i 'VJ the said cases. At the^stage offinal argument^, the Court could not have fft' Jj M'. dismissed the eomplaint\cases for non-appearance offKe complainant as his A r if * V,.'J[4].* •.% f/ V ^ X't. presence was not-required on tHat'day. Similar view hasSbe^n taken by the High Court of/Karariataka in the,case of Venkatesh vs. M/s Samruddha 5''{'C, Builders and Developers & Anr. in Crl.A. No.336/2012i decided on
3. Having regard to the law laid down and reiteratedfrom time to time by this Court to the effect that a complaint ought not to be dismissed for default if the presence of the complainant was not necessary or warranted, the Court ought notto have mechanically dismissedthe complaintfordefault.
4. In the presence case on hand, the writing in the ordersheet not being legible,and vleafff^ ofthe counsel that there was ngtliihg tpfiejdipheabyif^^^ by being present in Couft andthat the.p^orily^requirement,wasfurnishing ofprocess )yhipn:\was also, complied,with arffjhefervice of summons wasgiofbe reported toJhe- Court by thefi pircp, which was awaited- and hence,^^ffere was'no requirements^^of the presence>ofthe complaincmftbeforefhe Court on the shid day ■-1 ^ i"'* f 1k '" ''I f and therefore, the dismissal dflheycgmplaintfor defdulUresults I 4 in a miscarriage ofjusticefiffhmtpfd^Mpn is to be accefited..'!■! '-.li U The dppeffiSyfiefffdf^^HMIndn^^^ order of dismissal is seifqs0ei^ the Court belowforfurther stepffinMW&jfiancm^^
17. In view of the above legal position, the impugned orders dated 19.09.2012 whereby the Complaint Cases No.207/1, 105/1, 107/1 & 106/1 filed under Sections 138/143 NI Act have been dismissed in default of appearance of the complainant though the case was at the stage of final arguments, are not sustainable in law.
18. The impugned orders dated 19.09.2012 passed in Complaint Cases No.207/1, 105/1, 107/1 & 106/1 are hereby set aside. The Complaint Cases Crl.LP.Nos.85, 118, 119& 120 of2014 page 8of[9] restored to their original number. The parties are directed to appear before the coneemed Courton S'''April,2016.
19. Allthe four appeals are allowed.
20. The eomplainant had to unnecessarily litigate for almost SVa years for getting his complaints restored though at the stage of final arguments, complaints could not have been dismissed in default. The learned MM should have disposed ofthe complaints by passing the orders on merits after considering the material on record.
21. Itis directed thatafterthe paries appear beforethe learned Trial Court th. I~'3 ~'"vx on 5 April, 2016/i;a^ directed^ the complaints'^j,shall be disposed of expeditiously,preferablywvithin.a period ofthree moriths'Trbm that date.
22. A copy ofithisjorder be seht.to'the coheerned CQurt par information and compliancei; f. p {! ii As prayed,copy ofthe ordqr|]b|^iilen dasti to learned cbunsel for the parties. I 17,2016 Crl.LP.Nos.85.118,119&120of2014 page9of[9]