Full Text
HIGH COURT OF DELHI
Date ofDecision:17"^ March,2016
RAJKISHORESHARMA ' Petitioner
Through: Mr.Rajni Kant,Advocate
Through: Ms.Kusum Dhalla,APP for the "1ifM 1)33ShiKa|iilKashy^,son ofrespondent
AND -T \
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CRL.L.P.T18@)14 | RAJ KISHORE SHARMA^'^''3' Petitioner fi Through: MnRajniKant,Advocate!
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Sh.Kapil Ka'shyujp,son ofrespondent AND
RAJ KISHORE SHARMA Petitioner
Through: Mr.Rajni Kant,Advocate
Through: Ms.AlpanaPandey,APP for the State/R-I.
CH.LP. Nos.85, 118, 119& 120 of2014 Page I of9
2016:DHC:8901 Sh.Kapil Kashyap,son ofrespondent
No.2.
RAJ KISHORE SHARMA ..... Petitioner
Through: Mr.Rajni Kant,Advoeate
Through: ^MsAJpanaPandey,APP forthe State
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PRATIBHA RANI, JAOran r-— M
' ■#■■■
Crl.M.A.No.1659/2014 in Crl.L.P.Nd.85/i6l4 CrI.M.A.No.2320/2014 in CrI.L.P.Nkl;lS^2014
CrI.M.A.No.2325/2014 in Crl.L.PM.M9/^014 CrI.M.A.No.2327/2014 in Crl.E!;P2l^i2Mai4
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JUDGMENT
1. For the reasons stated-in the ipiplMti6ns^p|4^1^y iP filing the leave petitions is eondone(fX.^x,fX
2. Applications stand ^isppsed> CrI.L.P.No.85/2014 Crl.L.P.No.118/2014 Crl.L.P.No.119/2014 CrI.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 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 casesfiled by himforthe offeiices]^imishable,Jhdfep 138/142NIAct.
5. Notice ofthe petitiori'iwas'issued respondentjNo;2.
6. Respondent No[4];failed to appeaf but her son namely^Kapil Kashyap had appeared on'T6>/March, 2016. The'son of the res]piorident No.2 was directed to produce the respondentNo;2iihijlie Courttoday. \ 't " 'i' \|
7. Today again Sh.Kapil Kashykp/Ikoh/ofrespondent No.2ihas appeared '1. jl and stated that his mother is indisppsedfdnd she is unableto appeartoday. ■ If' '. a
8. Learned cotinselforfdspdndehTNbv^^ 3.15 pm but thereafter neither the Vbnyof the^respondent No/2f'/n,of 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 repeatedcalls. Accusedispresenton bail. The matter is listed today for final arguments and for appearance ofthe complainant. The complainant has remained Crl.LP.Nos.85,118,119&120of2014 ^ physically absent in 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-01 Delhi) 19.09.2012 At[2].50pm Pr: Nonefor cqmplaipant} fl !] tj ^ Sh.AdarsfiSaihiJcdunselfpr^accusedw^h accused. ^ "i ^ i Today, tHe matter is at the stage ofJinaTarguments. The complainant'lias chosen not to.appear before this-Court despite opportunitiesgiven by this Court. Ihave examinedthe Complaint, evidence)pn record and documents with a view to mscertain whether the personal attfridaq^^offhe complainarit can be dispensed with in tefms.cfff^ Cr.P.C.and1am ofthe consideredMeN^dif ^fed^)thf/complainant or hiscounseliS:^ifquwe^lfofyq^p^gjdm In the given circumstancesfTonly d^^ 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.LP. Nos.85, 118, 119&120of2014 Page4of[9] V
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 dismissthe complaint ifon any date fixed for hearing the.complaipaft to appear in the Court. Atthe same time,ifthe Mafistrate finds that there is>s6me reason or that the presence of the cpmpjainant,was/not'required, he m his, discretion can adjourn the complainij' ' \
12. A perusal ofthe order dated 22.08.201'2, by which the case was listed for 19.09.2012,l|on which date it came'^to be dismissed in default, shows it was listed final arguments for wniph personal'-appearance ofthe complainant was notrequired. cTo" T --
13. Section 143 ofcNT^ that,fh€'ca$es under Section 138 N[1] Act shall be tried summani|;by a Judibil®lgistrafe ofFirst Class or by a Metropolitan Magistrate and the provTsibfis of Sections 262 to 265,(both inclusive)oftheCodeofCriminalProcedure shall,asfaras may be,applyto such trials.
14. Code ofCriminal 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 m 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 ■' Page 5 of[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 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 arrive[4] for the. that'thq lower Courts are not following the mandate ofthe/Stalhte^ the cases under Section 138 ofNI.Kctfin a summary'mahhef and des|ite amendment in NI Act, continue trying/fhese cases as summons trial cases?/an4\a long drawn i'/ u procedure is followed.Para 17 ofthe'report giving summary trjal procedure to be followed for offences under Section138 NI Act,is extracted as under: ■' > jl '17. The summary trialprocedure to be followedforlpffences underSeciiqn138N.I. Act'Wouldthusfeaffpc^r: f StepI: On tnf day.cornplqint ispresefdedipfhef^cornplairit is accompanied by -af[idqviJfof;fdmplqir^^ MM shall scrutinize the cdmptdint:&iLdoeumepts'dnd if commission of offence is made out, take cognizance & direct issuance of summons ofaccused, against whom case is made out. StepII:Ifthe accusedappears, theMMshallask him tofurnish bail bond to ensure his appearance during trial andask 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.L.P. Nos.85, 118, 119& 120 of2014 Page 6of[9] 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 case,on-rnerits dhfhe.basis of evidence led in.v''" r.. \t M P the said eases. At the stage,of'final argurhdhts, the Court could not have dismissed the coniplaihttcases forlndn-appearance of{he complainant as his presence was not required on that day. Similar view hasubeen taken by the High Court ofjKarariataka in the case of Venkatesh vs. MA Samruddha n" i' ii 1 ^ n i] Builders and IDevelopers & Am in Crl.A. No.336/2012; decided on 29.10.2014 wherein while disposingofthe-apj^eal preferred againstthe order dismissing the complaintCfOp of the ^complainant, it was observed as under:- ^ '2. The appeal comid^eU^^fiMal^spqsdfhaving regard to the circumstances df-theifas^^^^ 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'sstatement was recorded by 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 Crl.L.P.Nos.85,118,119cS: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 notto have mechanically dismissed the complaintfor default.
4. In the presence case on hand, the writing in the ordersheet not being legible,gnd clearcjl^^ ofthe counsel that there was notfiihg tp-^idbh^jby^epcoifiplgm by being present in Court an^Hhdt the.only requiremefitwasfurnishing ofprocess whichfwas also complied with aMfihe-iservice of summons wasfdf'be reported to the Court by the^fiqliee, which was awaited'and hence, pPiere was'no requirefnenf^of the presenceipfthe complainant before'fihe Court on the said day and therefore, the dismissal-fi flHeicpmplaintfor defaultjresults in a miscarriage ofjusticei^he cont^ptipn is to be accepted. The appealjfiii^efdre^Mmm^ order of dismissal is setfisidej The^rnaderfis^T^^ the Court belowforfurthersteps, indm^fianee^mihHg^
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& 120of2014 Page8of[9] restored to their original number. The parties are direeted to appear before the concerned Courton 5'*^ April,2016.
19. All thefour appeals are allowed.
20. The complainant had to unnecessarily litigate for almost 3V[2] 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 thatafteptHe p^rtips appear,beforethe learned Trial Court on 5'^ April, 2016,,:aS direfcted,' the complHntsKshall be disposed of expeditiously,prefefabl^'within a period ofthree monthsTrom that date.
22. A copy ol^'this[7];:brder be sent to*the'concerned Cdurt for information and compliance.: ' '; f; ij i; bp J,.i ij As prayed,copy ofthe ordeWbe'iiyen dasti to learned counsel for the I"., M parties. p /i A RANI,J. MARCH 17,2016 'st' CrI.LP. Nos.85, 118, 119& 120of2014 page9of[9]