S.K. Jain vs The State And Anr.
1987 Latest Caselaw 499 Del

JUDGMENT

D.P. Wadhwa, J.

(1) This is an appeal against an order of the learned Commercial Sub-Judge convicting the appellant under S. 228 Indian Penal Code . read with S. 345 of the Code of Criminal Code 1973 and sentencing him to pay a fine of Rs.200.00. The order is dated 9/8/1983. The incident out of which the present proceedings arose was small but 'unfortunately has been blown out of all proportions.

(2) In a suit for recovery of about Rs. 10,000.00 summons was issued to the defendant for whom the appellant appeared in the court of the Commercial Sub Judge. The appellant as an advocate appeared for the first time on 30/5/1983 when he filed his memo of appearance and stated that copy of the plaint had not been given to him. On this date. the learned Commercial Sub Judge was on leave and the case was adjourned to 9/8/1983 for further proceedings. On this date, the appellant filed his vakalatnama and again submitted to the court that copy of the plaint had not bean given to him with the summons. The record shows that counsel for the plaintiff did not object to this statement of the appellant. However, the court observed with reference to the summons in question that copy bad in fact been given at the time when summons was served on the defendant and in this connection the learned judge referred to the words 'CA' written in hand at the bottom of the first page of the summons. When attention of the appellant was drawn to this endorsement he submitted to the court that the words 'CA' meant copy attached either for him to understand or for the court to know but a layman would certainly not know what the words 'CA' meant, I have myself seen the summons and I must admit I would myself not know if the words 'CA' meant copy attached. Even Mr. Sethi, learned counsel for the respondent, expressed ignorance that the words 'CA' meant copy attached. The defendant in this case is a company and summons was received by it on 13/4/1983 as the rubber stamp on the back of the summons would show. It is not mentioned that any copy was received by the defendant at that time. The matter could have been sorted out by adjourning the matter and by imposition of some costs, if necessary, which, in fact, was done. The court while adjourning the matter did impose a cost of Rs. 50.00. Still these proceedings were initiated as the court took offence allegedly to the statement of the appellant at the Bar that not only he but all the advocates were fed up with the behavior of the presiding judge. The appellant is further stated to have started fighting and threatened the presiding judge that he would see him outside the court. If all what is stated is correct, nothing could be more condemnable on the part of any advocate to so state. But in the present case the appellant has contended that he has a loud voice and at no stage did he threaten the court or made the statement imputed to him. The question that has been raised in the present appeal is as to whether the proceedings were properly initiated against the appellant resulting in his conviction and sentence as above-mentioned. If reference is made to the notice, issued under S. 345 of the Code, the court after framing the notice put the following question to the appellant : "Q: Do you plead guilty or have any defense to make ? A : The learned advocate stated that he is prepared to pay the fine, and after waiving notes in his hands left the court. As such he had no defense to make."

 Then the impugned order has been passed wherein the court has stated as under:    "I,therefore, hold the accused guilty under section 228 Indian Penal Code and I have heard him on the point of sentence. He bad nothing to say."  

 This certainly could not be correct as the appellant is stated to have left the court at the earlier point of time. Keeping in view the facts and circumstances of the case, it does appear to me that the appellant was not present at the time when notice was issued to him under S. 345 of the Code and there appears to be thus inherent defect in these proceedings.   

 (3) I would, therefore, accept the appeal, set aside the impugned order and acquit the appellant.