Delhi High Court
Sh. Ravi Sharma vs The State (Nct Of Delhi) & Anr on 11 August, 2009
Author: V.K.Shali
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Crl. M. C. No. 3891/2008
Date of Decision : 11.08.2009
SH. RAVI SHARMA ......Petitioner
Through: Mr. U.S. Sehrawat, Adv.
Versus
THE STATE (NCT OF DELHI) & ANR ...... Respondents
Through: Mr. Pawan Bahl, APP
CORAM :
HON'BLE MR. JUSTICE V.K. SHALI
1. Whether Reporters of local papers can be
allowed to see the judgment? YES
2. To be referred to the Reporter or not ? YES
3. Whether the judgment should be reported
in the Digest ? YES
V.K. SHALI, J. (oral)
1. This is a petition under Section 482 of the Cr.P.C. filed by the
petitioner Ravi Sharma against the order dated 9th May, 2007
passed by Ms.Mamta Sehgal, the then learned ASJ, New Delhi in
Criminal Revision No.38/2007 titled Sumer Rana Vs. Ravi
Sharma.
2. By virtue of the impugned order, the learned Sessions Judge
had set aside the order dated 28.2.2007 passed by Sh.Rajesh
Kr.Singh the then learned MM dismissing the complaint of
Sumer Rana for non-appearance and acquitting the accused and
directing the parties to appear before the learned Magistrate on
16.5.2007.
3. Briefly stated the facts of the case are that the
respondent/Sumer Rana filed three complaints under Section
138 of the Negotiable Instruments Act (hereinafter referred to as
Crl. M.C. No. 3891/2008 Page 1 of 5
the Act) which were assigned to the Court of Sh.Rajesh Kumar
Singh, learned MM, New Delhi.
4. It is stated that during the course of proceedings, two complaint
cases were fixed on 25.4.2007 while as the third one got
adjourned to 28.2.2007.
5. It is alleged that the respondent/complainant Sumer Rana
remained under the impression that all the three cases were
listed on the same date and he did not appear in Court on
28.2.2007 as a consequence of which the learned MM relied
upon Section 256 of Cr.P.C. and dismissed the complaint on the
ground of non-appearance and acquitted the accused/petitioner.
6. The respondent/complainant having learnt about the factum of
dismissal of one of his complaint filed a Crl. Revision
No.38/2007 against the order dated 28.2.2007 in which without
giving an opportunity of hearing, the learned Sessions Judge set
aside the order of dismissal and acquittal, which was passed in
favour of the petitioner/accused and directed the parties to
appear before the learned MM on 16.5.2007. The learned ASJ
in passing the impugned order relied upon the note reported as
2007 Cri.I J (NOC) 187 (DEL) titled M/s Digitronics Infosys Pvt.
Ltd. Vs. Devender Sahni & Anr. wherein an order of dismissal
of complaint was set aside and the complaint under Section 138
of the Act was restored.
7. The petitioner feeling aggrieved by the said order of restoration
has chosen to file the present petition under Section 482
Cr.P.C.
Crl. M.C. No. 3891/2008 Page 2 of 5
8. I have heard the learned counsel for the petitioner as well as the
learned counsel for the respondent/complainant.
9. The main contention of the learned counsel for the petitioner is
that once an order of dismissal of the complaint on account of
non-appearance of the complainant is passed under Section 256
of the Cr.P.C. by the learned Magistrate, it results in acquittal of
the petitioner and the only remedy available to the respondent
against the said order of acquittal was to prefer an appeal in
terms of Section 378 of the Cr.P.C. It was contended that the
said appeal against the acquittal would lie only to the High
Court.
10. The learned counsel for the petitioner in order to support his
submissions has relied upon the judgment titled as Kalpana
Tyagi Vs. Sneh Lata Sharma 2003(2) JCC (NI) 129, T.Azeerur
Rahman & Co. Vs. Super Supplies 2007 (3) JCC 302 (NI) and
R.P.G. Transmission Ltd. Vs. Sakura Seimitsu (I) Ltd. & Ors.
2005 (119) DLT 393.
11. As against this, the learned counsel for the respondent
/complainant has contended that the dismissal of the complaint
was only on account of non-appearance of the complainant and
therefore, the said complaint ought to be revived. To support his
submissions he relied upon the note on cases reported as 2007
Cri. I J (NOC) 187 (DEL) titled M/s Digitronics Infosys Pvt. Ltd.
Vs. Devender Sahni & Anr. It was also urged by the learned
counsel for the respondent that he had made an oral request to
the learned Sessions Judge to treat the revision as an appeal.
Although this fact of treating the revision as an appeal is not
Crl. M.C. No. 3891/2008 Page 3 of 5
recorded in the impugned order and that is how the order of
restoration of the complaint was passed.
12. I have considered the respective submissions. The contention of
the learned counsel that the request of the
respondent/complainant to treat the revision as an appeal was
considered by the learned Sessions Judge is without any merit
for the reasons that the appeal in a complaint case of acquittal
would lie only to the High Court and not to the Sessions Court.
Secondly, even if it is assumed that the learned Sessions Judge
had treated the revision of the petitioner as an appeal then this
fact is not recorded in the impugned order, therefore, this
argument advanced by the learned counsel for the respondent
only seems to be an afterthought.
13. So far as the reliance by the Court of Sessions on the note on
cases is concerned, this cannot be treated as a precedent as the
facts of the said case are not given in the note on cases and they
are not treated as a judicial precedents. As against this, there
are three authorities of the learned Single Judge giving the
detailed facts holding that a case where the complainant is
absent and the complaint is dismissed under Section 256
Cr.P.C., it results in statutory acquittal of the accused. If there
is an acquittal of an accused the only remedy which is available
to the respondent /complainant is to file an appeal against the
acquittal as envisaged under Section 378 (4) of Cr.P.C.
Moreover, in the present case, the learned counsel for the
petitioner has urged that even the notices were not served on
him by the learned Sessions Judge therefore, that also
Crl. M.C. No. 3891/2008 Page 4 of 5
tentamounted to passing of an order in violation of principles of
natural justice.
14. For the reasons mentioned above, the impugned order dated
09.5.2007 is not sustainable in the eyes of law. Accordingly, the
same is set aside. However, the respondent shall be free to file
an appeal against the acquittal order and if done so within one
month from today, the same shall be considered by the Court in
case the petitioner is able to furnish a reasonable ground
seeking condonation of delay.
15. With these observations, the petition is disposed of.
V.K. SHALI, J.
AUGUST 11, 2009
RN
