Delhi High Court
Elegant Finvest P.Ltd. vs Bharat Gulati & Anr. on 23 January, 2009
Author: Aruna Suresh
"REPORTABLE"
* HIGH COURT OF DELHI AT NEW DELHI
+ Crl. M. C. No. 3648/2007
Date of decision : January 23, 2009
# ELEGANT FINVEST P. LTD. ...... Petitioner
! Through : Mr. Sudhir Sharma, Adv.
Versus
$ BHARAT GULATI & ANR. ..... Respondents
^ Through : Nemo.
AND
+ Crl. M. C. No. 3652/2007
# ELEGANT FINVEST P. LTD. ...... Petitioner
! Through : Mr. Sudhir Sharma, Adv.
Versus
$ ASHA RANI ..... Respondent
^ Through : Nemo.
AND
+ Crl. M. C. No. 3661/2007
# ELEGANT FINVEST P. LTD. ...... Petitioner
! Through : Mr. Sudhir Sharma, Adv.
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Crl. M.C. Nos.3648/07,3652/07,3661/07,3664/07,3665/07,3666/07,3700/07 & 3701/07 Page 1 of 11
$ SURINDER KUMAR ..... Respondent
^ Through : Nemo.
AND
+ Crl. M. C. No. 3664/2007
# ELEGANT FINVEST P. LTD. ...... Petitioner
! Through : Mr. Sudhir Sharma, Adv.
Versus
$ VIVEK CHOPRA ..... Respondent
^ Through : Nemo.
AND
+ Crl. M. C. No. 3665/2007
# ELEGANT FINVEST P. LTD. ...... Petitioner
! Through : Mr. Sudhir Sharma, Adv.
Versus
$ SARABJIT SHARMA ..... Respondent
^ Through : Nemo.
AND
+ Crl. M. C. No. 3666/2007
# ELEGANT FINVEST P. LTD. ...... Petitioner
! Through : Mr. Sudhir Sharma, Adv.
Crl. M.C. Nos.3648/07,3652/07,3661/07,3664/07,3665/07,3666/07,3700/07 & 3701/07 Page 2 of 11
Versus
$ AVTAR KAUR ..... Respondent
^ Through : Nemo.
AND
+ Crl. M. C. No. 3700/2007
# ELEGANT FINVEST P. LTD. ...... Petitioner
! Through : Mr. Sudhir Sharma, Adv.
Versus
$ MANOJ KUMAR ..... Respondent
^ Through : Nemo.
AND
+ Crl. M. C. No. 3701/2007
# ELEGANT FINVEST P. LTD. ...... Petitioner
! Through : Mr. Sudhir Sharma, Adv.
Versus
$ MOHAN LAL ..... Respondent
^ Through : Nemo.
%
CORAM:
HON'BLE MS. JUSTICE ARUNA SURESH
(1) Whether reporters of local paper may be
allowed to see the judgment?
Crl. M.C. Nos.3648/07,3652/07,3661/07,3664/07,3665/07,3666/07,3700/07 & 3701/07 Page 3 of 11
(2) To be referred to the reporter or not? Yes
(3) Whether the judgment should be reported
in the Digest ? Yes
JUDGMENT
ARUNA SURESH, J.
1. Vide this common order, I shall consider eight Crl.
M.C. filed by the petitioner challenging the order of
the trial court dated 4.5.2007 passed in CC Nos.
345/1/05, 347/1/05, 343/1/05, 346/1/05, 342/1/05 and
1807/1/05 and the orders dated 5.5.2007 passed in
CC Nos. 348/1/05 and 344/1/05, whereby the learned
MM was pleased to dismiss the complaints of the
petitioner for non-prosecution under Section 256 of
Criminal Procedure Code (hereinafter referred to as
Cr.P.C.). Revisions against the said orders filed in the
Court of Additional Sessions Judge also stood
dismissed on 3.7.2007 in view of the provisions
contained in Section 378 of Cr.P.C. Aggrieved by the
said orders of the learned MM and of the Revisional
Court, these petitions have been preferred in this
Court.
2. Petitioner filed eight complaints against different
persons (respective respondents in each petition)
under Section 138 of the Negotiable Instruments Act
(hereinafter referred to as NI Act). All the complaints
were being taken up together by the trial court. As
per the petitioner, complaints were at pre-summoning
stage and the next date of hearing was fixed for
7.5.2007 by the Ahlmad of the court as MM and
reader of the court were on leave on 21.4.2007.
However six of the complaints being CC Nos.
345/1/05, 347/1/05, 343/1/05, 346/1/05, 342/1/05 and
1807/1/05 were dismissed by the learned MM on
4.5.2007 for non prosecution and two complaints
being CC Nos. 348/1/05 and 344/1/05 were dismissed
on 5.5.2007 for non prosecution and the respondents
in each complaint were acquitted.
3. Learned counsel for the petitioner has submitted that
the order of the learned MM was erroneous since
summons were not issued to the respondents but they
were acquitted due to non prosecution. The Ahlmad
of the court gave the next date of hearing as 7.5.2007
in all the complaints and learned MM passed
impugned orders erroneously as none of the eight
complaints figured in the cause list on the date fixed
i.e. 7.5.2007 and it was only on enquiry that,
petitioner came to know that six of the complaints
were dismissed on 4.5.2007 and the other two
complaints were dismissed on 5.5.2007.
4. Learned counsel for the petitioner has also submitted
that the Revisional Court did not adopt proper
approach while dismissing the revision petition, as,
correction of the erroneous order passed by the
learned MM was within the Sessions Court's power
contemplated under Section 397 of Cr.P.C. In support
of his contentions, he has relied on M/s Pepsi Foods
Ltd. and Anr. V. Special Judicial Magistrate and
Ors. - AIR 1998 SC 128.
5. Petitioner was directed by this Court to file certified
copies of the entire proceedings of the trial court in
the criminal complaints but despite opportunity
granted, only copy of the complaint was filed and
certified copies of the entire proceedings, as directed,
were not filed. It was in the absence of the relevant
orders of the trial court that arguments of the learned
counsel for the petitioner were heard. The Court,
therefore, could not get any assistance from the
proceedings of the trial court.
6. Precisely, the case of the petitioner is that none could
appear on behalf of the petitioner either on 4.5.2007
or 5.5.2007 as the date given to the petitioner by the
Ahlmad and noted by the counsel in his diary was
7.5.2007. It is pertinent to mention here that counsel
for the petitioner has not placed on record any copies
of his diary or of his brief to convince the Court that
the date which was given to the petitioner by the
Ahlmad was 7.5.2007. It is also not known if learned
MM was on leave on 21.4.2007; the previous date of
hearing fixed before him whereafter the complaints
were listed for 7.5.2007 as alleged. In fact, petitioner
has not placed on record any evidence to support its
averments addressed in the Court. It is not known if,
at all, the trial court had taken cognizance of the
offence and had issued summons for appearance
against the respondents. According to the petitioner,
the order of dismissal of the complaints for non
prosecution was erroneous because summons were
not issued to the respondents. This fact could be
verified only when the certified copies of the
proceedings were made available for the scrutiny of
this Court.
7. Impugned order of the learned MM dated 4..5.2007
and 5.5.2007 in all the complaints is verbatim the
same. It reads:
"Present: None for complainant despite
repeated calls. It is 3.30 p.m, Fourth
call since morning.
As observed, the complainant has not
taken steps for summoning of the accused.
I am of the opinion that the complainant is
not interested to pursue the complaint.
Accordingly the complaint is dismissed U/s
256 Cr.P.C. for non-prosecution. Accused
is acquitted. Original documents, if any,
be returned after cancellation of
endorsement. File be consigned to record
room."
8. As per this order, it is clear that trial court had passed
an order for summoning of the respondents after
taking cognizance of the offence under Section 138 of
the NI Act. However, the petitioner did not take any
steps for summoning of the accused. Trial court also
observed that complainant was disinterested in
pursuing the complaints and it was under these
circumstances, the complaints were dismissed for non
prosecution. Observation of the learned MM
regarding disinterest of the complainant in
prosecuting the complaints must have been based on
the conduct of the petitioner on previous occasions
and on the dates fixed by the trial court for
prosecuting the complaints.
9. As pointed out above, the petitioner has failed to give
proper assistance even to this Court despite
directions. It was for the petitioner to substantiate its
stand that Ahlmad of the trial court had given them
the next date of hearing as 7.5.2007, but the trial
court took up these complaints on a pre date and
dismissed them for non prosecution. Conduct of the
petitioner is obvious as even after filing these
petitions, petitioner has not seriously prosecuted
these petitions from the first date of its institution.
10. Perusal of the record indicates that after filing of
these petitions, two dates were taken by the counsel
for the petitioner himself and no proceedings could be
conducted. None had appeared on behalf of the
petitioners on 20.2.2008 and the matter was
renotified for 3.3.2008. From November 2007 till
3.3.2008 petitions were being adjourned on behest of
the petitioner. First order of issuance of notice was
passed on 3.3.2008. On 14.5.2008, petitioner was
directed to file certified copies of the entire
proceedings conducted by the trial court in the
criminal complaints which was not complied with and
in the absence of the certified copies, this Court
proceeded with hearing the arguments on the
petitions on 23.9.2008. Under these circumstances,
the trial court rightly observed that complainant was
not interested in prosecuting the complaints and
accordingly dismissed them.
11. M/s Pepsi Foods Ltd. and Anr. (supra) is of no
help to the petitioner in this case. The Supreme
Court considered the scope of powers of the High
Court in Criminal Writs. Scope of powers of the High
Court in a criminal writ is not an issue in these
petitions. It is no longer res-integra that High Court
has the power of judicial review in criminal matters
Crl. M.C. Nos.3648/07,3652/07,3661/07,3664/07,3665/07,3666/07,3700/07 & 3701/07 Page 10 of
under Section 482 Cr.P.C. In the said case accused
had filed a writ petition challenging the summoning
order of the trial court whereas in the present case it
is the complainant who has filed this writ petition
challenging the order of the learned MM and of the
revisional court whereby its complaints were
dismissed for non prosecution.
12. For the foregoing reasons, I do not find any reason
to interfere in the impugned order of the learned MM
dated 4.5.2007 and 5.5.2007 dismissing the
complaints of the petitioner and the order dated
3.7.2007 of the revisional court. Hence, petitions are
hereby dismissed.
(ARUNA SURESH)
JUDGE
January 23, 2009
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