Full Text
Date ofDecision:17''^ March,2016
RAJ KISHORE SHARMA Petitioner
Through: Mr.Rajni Kant,Advocate
Through: Ms.Kusum Dhalla,APP forthe ^ IJsI/ShiKaplKashy^,son ofrespondent
MD
RAJ KISHORESHARMA ' -. •' .1.Petitioner if . ri
:. Through: n Mr.Rajni Kant,Advocatej h Si',t .4}fill i'l
U
A , Through: /^Pforthe K^hyap,son ofrespondent
Through: Ms.Alpana Pandey,APP for the State/R-l.
Crl.LP. Nos.85, 118, 119& 120 of2014 Page 1 of9
2016:DHC:8898 Sh.Kapil Kashyap,son ofrespondent
No.2.
AND
Through: „Ms^41panaPandey,APP forthe State
PRATIBHA RANDJ;iTOralV A ^ Crl.M.A.No.1659/2014 in
Crl.M.A.No.2320/2014 in Crl.L.]P.^^^iO^Si014 Crl.M.A.No.2325/2014in CrI.L.PMo.M9/2014 , Crl.M.A.No.2327/2014 in Crl.lljp!NoA2Mll4 //
. I j , ;i 1.
.-y For the reasQps,^M^d;^m.tfie1^l.J<S)hs';^'M4efe^ filing the leave petitions is condoned'
JUDGMENT
2. Applications stand disposed..'-- CrLL.P.No.85/2014 Crl.L.P.No.118/2014 CrI.L.P.No.119/2014 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 Cr].L.P.Nos.85,118,119&120of2014 Page2of[9] filed by him against the respondent No.2 herein for committing the offence punishable under Section 138/142 NI Act have been dismissed in default by learned Metropolitan Magistrate.
3. The impugned order dated 19.09.2012 was challenged by the 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 punishablefthder-Section 138/142NI Act. I'TiTi'i't! ij /j)/J;;--
5. Notice ofthe petitioriiwasTssued to respohdent^Nb.'2.
6. Respondent.No.2,:failed to appear but her son namely Kapil Kashyap had appeared on?16-i^March, 2016. TKc/Son of the rS|fpri'|ent No.2 was directed to producethe respondentNo'.[2] in'the Courttoday. nn
7. Today again Sh.Kapil Kashyap;;spnjpfrespondent No.2l!has appeared /• i; and stated thathis motheris isunableto apjpeartoday.
8. Learned cotinselfon^slphde^:^ beenWaite#till[3].15pm but thereafter neither tlie'SPm^ Np.2, npr her counsel has appeared.
9. The impugned order wHereby"^tW'complaint cases filed by the appellant have been dismissed in default,reads as under 19.09.2012 at1145pm Pr:- Nonefor the complainantdespite repeatedcalls. Accusedispresenton bail. The matter is listed today for final arguments and for appearance ofthe complainant. The complainant has remained Crl.L.P. Nos.85,118,119& 120of2014 Page3of[9] iM 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: Noneforcph^laipa^ff'i. SkAdarshSainLcounselforaccusedw^tih accused. Tod^,^matter isat the stage offinala^uihents. The complainant-has chosen noCto appear before thif'CouN despite opportunitiesgiven by this Court. Ihave examinedthe complaint, evidence | jo/? record and docuniehfs with a view to\iascertain whether ife personal a0endanc0^the complainant can be dispensedwithinter^pi^^^^}^^ypm25fCr.P£.andIam ofthe considered0fwfhatfhef^ Ofeifl)teffhe)complainant orhiscounserisTei^ir^f^i^pwc^ In the given circmnsic^sf^0^:6j^n left with the Court, keeping in view the absence ofthe complainant is to proceed against him under Section 256(1)Cr.P.C. As the complainant has failedto appear,thepresentcomplaintcase isdismissedin default ofappearance. In result, accusedis acquitted. File be consigned to record room..Sd/- (ACMM-01Delhi) 19.09.2012' Crl.LP.Nos.85,118,119&120of2014 ^ \s
10. The proceedings dated 19.09.2012 reveals that the ease 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 complaintcases could not have been dismissed in default.
11. In the complaint is tried as'summary trial' under Section 256 ofCode ofCriminalProcedure,the Magistrate has discretionto dismissthe complaint ifon any date fixed for hearing^the-epmplam^^^^ appear in the Court. Atthe same time,ifthe Magistrate finds thaffhereis.soihe reason or thatthe presence of the complainant was not required, h^J,im hk discretion can adjourn the comj^'laint]-' -- ^■\\
12. A perusalfof the order dated'^22.O[8]:!0ir[2], by which the dkse was listed n \ i ' ^ i ih 'I for 19.09.2012,!ion which date it camedo be dismissed in default, shows it was listed final arguments for Ayhidli^^lllappearanee oftlfecomplaihant was not required.
13. Section 143 ofA|Tr^& provides th^ Section 138 NI Act shall be tried summanl;^:by"a JudicialMagistrate ofFirst Class or by a Metropolitan Magistrate and the provisibh's'of Sections 262 to 265, (both inclusive) ofthe Code ofCriminalProcedure shall, as far asmay 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 of summons ease 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.LP.Nos.85, 118, 119& 120of2014 5^yp 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 concerned 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 objective ofthe proceedings under Section 138 NI Act. The learned Single Judge also considered that this situation has arrived Tor'thei reason that^the lower Courts are not following the mandate^bfthe/Statute of conducfing^frial ofthe cases under Section 138 ofNI,'^A^t^fi asummary mannjr:and desp.ite amendment in NI Act, continue tr^ing^jthese cases as;summons'trial cases}and\a long drawn procedure is followed. Para 17 ofthe report giving summary trjal procedure }. '• I'j to be followed for offences under Section 138 NI Act,is extracted as under:
77. The summary trial^f(5i^^r^tP}befollowedforfbffences underSectfon 138 afunder: -f StepI: On the.Mfidomplqint is pr§sentedfffhefcomplaint is accompanied MM shall scrutinize the cdmplaintl&7dociim ifcommission offence is made out, tal(e~~cognizance & direct issuance of summons ofaccused, against whom case is made out. StepII:Ifthe accusedappears, the MMshallask him tofurnish hail hand 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. CrI.L.P. Nos.85,118,119& 120of2014 Page6of[9] n Step III:Ifthere is an application under Section 145(2)ofN.I. Act for 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 hear arguments 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^p^^^ ofevidence led in O/f"the said cases. At the'^'stag"e,6'of'final argunierits; the Court could not have f' dismissed the coniplainfpases for non-appearance ofThe complainant as his '■/ ^ ■» xl ^ i.'T' presence was not 'reqtjired on that:day.- Similar view h^.be^h taken by the High Court of/Karanataka in the case of Venkatesh vs. M/s Samruddha U -! ^ f a j[1] Builders and 'pevelopers & ip'''Cfl.A. No.336/2012j decided on 29.10.2014 wherein while disposingipf the appeal preferred against the order "5;{ '"t'f f^ T' // dismissing the edmplamtcjfor^nphi^^^ it was observed as under:-'\, i:; t-:. '2. The appealeortsidfriUffoKfiiM)Msp^dl( having regard to the circumstances of the{fasex^^^^ appellant was the complainant before the Court below alleging an offence punishable under Section 138 of the Negotiable Instruments, Act, 1991 (hereinafter referred to as 'the NIAct', for brevity). The appellant's statement was recordedby the Court below and cognizance was taken. A case was registered and summons were ordered to the respondents — accused. Though process was paid from time to time, the service of summons was awaited. It was at this stage that since the complainant had CrI.L.P. Nos.85, 118, 119 & 120 of2014 ■ j failed to appear on aparticular day, the Court has thought itfit to dismiss the complaintfor default.
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 complaintfor default.
4. In the presence case on hand, the writing in the ordersheet not being legible.and^cleW,fhb'statement ofthe counsel that there was nqtHihg ptSe^ddhelbyfffieipomp by being present in Court andJhdi the^oMly,requireniint.wasfurnishing ofprocess whicffwas also, complie^ffwith anfjhe'<}service of // (,,n. 'v, summons was'fffbe reported to thq^CMrt by thefff^ice, which was awaited-'find hence;\]iherejwas:no requirement^of the presence'ffthe complainant before the Court on the sdid day and therefore, the dismissalofthe.complaintfor defaultfesults in a miscdr^riage ofjusticejffhe contention is to be accepted. 0, /•I;''' \ )■ "i' The appeal.is,fffffffdfe'Surhmarily dlTqv^^ order of dismissal is set-ffsidd fThe,J}iqtffp^is^femdjMedffo the Court belowforfurther stepf inffc^drdf^f'Se^fi^
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 NT 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 g restored to their original number. The parties are directed to appear before the concerned Courton April,2016.
19. All the four appeals are allowed.
20. The complainant had to unnecessarily litigate for almost 3'A 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. It is directed that aftenthd parties appear before the learned Trial Court on 5 April, 2016,.:;as directed, _t)l\^.,^coii]pIaint^»^.sfiajl be disposed of expeditiously,preferabifiwithin a period ofthree montfisTrom thatdate.;V', ^
22. A copy of/thii;order be sent to the concerned Cohrt for information and compliance,i^ V / '' r Asprayed,copy ofthe order"be0l^eli dastito learned cbunselforthe U -2 S.\ parties. ^ ^ A- "'V f j ■'T. MARCH17, 2016 ■sr' ■