Full Text
CRL.L.P.85/2014
RAJ KISHORE SHARMA Petitioner
Through: Mr.Rajni Kant,Advocate
Through: Ms.Kusum Dhalla,APP for the ,; ^ i/J JrShlKapilKashy^,son ofrespondent
AND X'- CRL.L.P.,E18|^4 RAJKISpORESHARMA^ ll.Petitioner fl Through:'^ Mr.RajniKant,Advocate]
X
•V. ,'.j.vfhrpUgii: Ms.Kusui^DlidlfaiA^ forthe
-,S.tate/R^f. ' :/* iSh.KapitK&hyap,son ofrespondent
■ •
Through: Ms.Alpana Pandey,APP forthe State/R-1.
CrlLP.Nos.85, 118, 119& 120of2014 Page1 of9 2016:DHC:8899 yy
Sh.Kapil Kashyap,son ofrespondent No.2.
AND
Through: ^ Ms.AlpanaPandey,APP for the State
.,..-■■3'-'" ~ "---I-!-.
CrI.M.A.No.l659/2()i4inCrl.LmJb^5/2Q14 | Crl.M.A.No.23^0/2014 inCrI.L.P.Nall8l014 jl
CrLM.A.No.2325/2014 in CrI.L.Pd^o.M9m014 n Crl.M.A.No.2327/2014 in Crl.L.P.No.l20yf014
JUDGMENT
1. For the reasons stated;in the appiicalions ■ the;d^ in filing the leave petitions is condoned^.TT-"
2. Applications stand di§ppse!d/:.^l/;-.//i^^t.T: ^^ CrI.L.P.No.85/2014 Crl.L.P.No.118/2014 Crl.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 Crl.L.P. Nos.85, 118, 119 & 120 of2014 Page 2 of[9] filed by him against the respondent No.2 herein for eommitting the offenee 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|3unishable underSection 138/142NI Act.
5. Notice ofthe petition;wasissued to respdhdenfNo.:2.
6. Respondent/No.2;failed to appear but her son namely Kapil Kashyap had appeared on March, 2016. The'son of the respprident No.2 was directed to prodiice the respondentNo.2in the Courttoday. j',
7. Today again Sh.Kapil Kashyap;'son ofrespondent No.2f,has appeared andstatedthathis motherisindis|p|>sedidiidsheisunabletoappeartoday.
8. Learned codnselfbrTesi?0hSep||fe^ 3.15pm but thereafter neither the, soh;{ofThp respondent N^ her counsel has appeared.
9. The impugned order whereby the complaint cases filed by the appellant have been dismissed in default,reads as under 19.09.2012at1145pm Pr:- Nonefor the complainantdespite repeated calls. Accusedispresent on bail. The matter is listed today for final arguments and for appearance ofthe complainant. The complainant has remained Crl.LP.Nos.85,118,I19.& I20of2014 Page3of[9] physically absentin this Courtsince 23.04.2012 onfour 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: Noneforcgmplainadt.-^ ^ O ^- Sh.AdarfHSqikhtdunselfpr^accusedwith accused. Today,fire matteCls at the stage offinal arguments. The complainmt has chosen not to appear before thif 'Court despite opportunities given by this Court. 1have examined the dqmplaint, evidence Von record and dobimiehis with a view to Ascertain whether the personal a0mim0QfiJhe complainant can be dispensedwjth in tgms($prcwisQf&'s^tip^ Cr.P.C.andlam ofthe consideredSnmithat thepresbncef^dith^ihf fomplam^ or hiscounselisinquiredforproceeding%fili^i^ In the given circumstanceSfVpnly-optfon 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 record room. Sd/- (ACMM-01Delhi) 19.09.2012' Crl.L.P. Nos.85, 118, 119& 120of2014 „,, •' Page4of[9]
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 complaintcases could not have been dismissed in default. *11. In the complaint is tried as'summary trial' under Section 256 ofCode ofCriminal Procedure,the Magistrate has discretion to dismiss the complaint ifon any date fixed for heariilg the complainant appear in the Court. Atthe same time,ifthd Magistrate finds thafthere.isj-sbrrie reason or thatthe presence of the cdmplaiiiant was not required, heMn'liis discretion can adjourn the complainit;? ^
12. A perusalfofthe order dated 22.08:2012, by which the case was listed ti -i'. 1; for 19.09.2012,iton which date it came*to be dismissed in default, shows it r, WM: n '•.-1' ''-;r \ I V >: •' was listed final a;rguments for whidm^'efsdhal.appearance ofthe complainant was not required. •;., //
13. Section 143 of,;NI^ thatfthe cases under Section 138 NI Act shall be tried summaMl^fi^altidicidfli^^r ofFirst Class or by a Metropolitan Magistrate and the pfbVisidns 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 Cii.L.P. Nos.85,118, 119& 120of2014 Page5of[9] 138 NI Actis 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 eoneemed that the High Court is being flooded with the petitions under Section 482 CrPC for quashing the complaints under Seetion 138 NI Aet and the grounds on whieh generally the quashing was sought,the learned Single Judge highlighted the objeetive ofthe proeeedings under Section 138 NI Act. The learned Single Judge also considered that this situation has anived,;fof the. rep,on that^The lower Courts are not following the mandatefoftliq'Slatute ofcondiifenptriahpfthe eases under Seetion 138 ofNlj/lqtJh a summary manner\,and despite amendment in NI Act, continue tryin^-these cases as summons trial eases}=an4\a long drawn /■ ■^11, Tl I'rI V'; procedure is followed. Para 17 of the report giving summary tpial proeedure j;,[1] ',I ' 5 ' ' to be followed for offences under Seetion^138NI Aet, is extraeted as under:
77. The summary trialprocedureytQ'^be followedfor jpffences under SectionISSJfolfoiSlfooifd'thmfk asfonder: StepI:On tM^^^fofoomplqmt isj^e^htedf^fofoS is accompanied MM shall scrutinize the cdmffoint.foMocuments andif commission of offence is made out, taice cognizance & direct issuance of summons ofaccused, against whom case is made out. StepII:Ifthe accusedappears, theMMshallaskhim tofurnish bail bond to ensure his appearance during trialandask 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 accusedunder Section 145(2) ofN.I. Act for recalling a witness for cross examination on plea of defence. Crl.LP.Nos.85,118, 119&120of2014 | (' Page 6 of[9] )7 StepIII:Ifthere is an application under Section 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 hearargumentsofboth sides. Step V:Topass order/judgment. '
16. The learned Trial Court was required to follow the procedure prescribed and dispose ofthe casepnTmerits ori the basis ofevidence led in the said eases. At the'-stage^b#final arguniehts, the^Gourt could not have dismissed the compiaink.cases for.non-appeafanee ofThe complainant as his presence was not-required on that day.^ Sipxilar view hast:been taken by the High Court of.(Karanataka in the ease of Venkatesh vs. M/s^ Santruddha Builders and pevelopers & ?|in|(S-1.A. No.336/20lJ decided on 29.10.2014 whefein while disp(gipfe|t(i|^ealpreferred a^instthe order dismissing the copjlaint fbr liphrappea^e.^^^ it was observed as under:-7,'-: '
2. The a.ppeal eohsidefed'fo^firidWdis^psdl, having regard to the circurnstances' complainant before the Court below alleging an offence punishable under Section 138 ofthe Negotiable Instruments, Act, 1991(hereinafter referred to as 'the NIAct',for brevity). The appellant'sstatementwasrecordedbythe Courtbelow 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 Crl.LP.Nos.85,118,119& 120of2014 Page 7of[9] 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 not to have mechanically dismissedthe complaintfor default.
4. In the presence case on hand, the writing in the ordersheet not being legible and'clear,fhe^^^ ofthe counsel that there was nothing ta beiffmdibyfheyconiplm^ by being present in Court qndthdt the.^pnly. requirementwasfurnishing ofprocess which was also complied with andHhe^service of summons wasfcfbe reported to the Cpurt by the:pbliee, which was awaitedland hence, there, was no requirernenf,of the presenceif fthe complainant before the Court on the said day ^! '■i s''' 'Is j- 'I' 'if 11 and therefore, the dismissalqfthefqmplaintfor defaultjresults in a miscarriage ofjusticeiiThe:contehtion is to be accepted. The appeqlfffherefore summarily alh The order of dismissal is sel.aside: The..piatter is rerhdmdefifo the Court belowforfurther stepf;ifaepbrdance wiilpfjyyi'
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& 106/1arehereby set aside. The Complaint Cases Crl.L.P. Nos.85, 118, 119 & 120 of2014 n „ ■' Page 8 of[9] restored to their original number. The parties are directed to appear before the concerned Courton 5^ April,2016.
19. All the four appeals are allowed.
20. The complainant had to unnecessarily litigate for almost SVi 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 after the parties appear before the learned Trial Court on 5''' April, 2016 as directed, the complaints shall be disposed of expeditiously,preferably within a period ofthree monthsfrom that date.
22. A copy of this order be sent to the concerned Court for information and compliance. As prayed,copy ofthe order be given dasti to learned counsel for the parties.