Rakesh Kr. Goel vs Bharat Rasayan Finance Ltd.
2010 Latest Caselaw 2159 Del

36&37.
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

+      CRL.M.C. Nos. 1291/2010 & 1292/2010

                                         Date of decision: 23rd April, 2010

       RAKESH KR GOEL                                ..... Petitioner
                     Through Mr. D.D. Singla, Advocate.

                       versus

       BHARAT RASAYAN FINANCE LTD.                          ..... Respondent
                    Through

       CORAM:
       HON'BLE MR. JUSTICE SANJIV KHANNA

       1. Whether Reporters of local papers may be
       allowed to see the judgment?
       2. To be referred to the Reporter or not ?
       3. Whether the judgment should be reported
       in the Digest ?

                                      ORDER

1. By order dated 27th January, 2010 passed by the learned Metropolitan Magistrate, the petitioner-accused was admitted to bail on furnishing personal bond of Rs.2 lacs with one surety of the like amount. The said order records that bail bonds were furnished and accepted and as the petitioner-accused had pleaded not guilty to notice under Section 251 of the Code of Criminal Procedure, 1973, the case was fixed for recording of complainant's evidence on 10th February, 2010.

2. Order dated 27th January, 2010 reveals that at about 3 p.m. the case was again taken up by the learned Metropolitan Magistrate as Assistant Ahlmad had reported that the signatures of the petitioner-accused could not

CRL.M.C. Nos. 1291/2010 & 1292/2010 Page 1 be obtained on the bail bond register. The learned Metropolitan Magistrate thereupon issued bailable warrants for the sum of Rs.10,000/- against the accused returnable on 1st February, 2010.

3. The second order passed at about 3 p.m. on 27th January, 2010 was in the absence of the complainant.

4. The petitioner-accused appeared on 1st February, 2010 and bailable warrant was cancelled. The petitioner-accused on the said date made a request that the complaint should be dismissed for non-appearance of the complainant. Learned Metropolitan Magistrate rejected the said request. As noted above, on 27th January, 2010, the case was initially adjourned to 10th February, 2010 and it is obvious that the complainant did not have notice of the hearing fixed on 1st February, 2010.

5. On 10th Februry, 2010, the matter was listed and renotified for 30th March, 2010. The learned Metropolitan Magistrate did not accept the request of the petitioner-accused that the complaint should be dismissed as there was no appearance on behalf of the complainant at the time when the matter was called out. It is not clear from the order dated 10th February, 2010 whether the case was called out in the morning and adjourned or it was called out and passed over and thereafter the case was adjourned in the afternoon.

6. It is apparent from the petition that the petitioner-accused had made a complaint and also moved a transfer application before the Chief Metropolitan Magistrate with reference to the proceedings on 27th January, 2010. Order dated 1st February, 2010 specifically records that the file had been sent to the court of learned Chief Metropolitan Magistrate and was not available with the learned Metropolitan Magistrate.

7. In view of the aforesaid, I do not think the petitioner-accused is justified in his contention that he should have been acquitted due to non-

CRL.M.C. Nos. 1291/2010 & 1292/2010 Page 2 appearance of the complainant on 1st February, 2010 and 10th February, 2010. Learned Metropolitan Magistrate has exercised his discretion and adjourned the matter and did not dismiss the complaint. It is not mandatory, as is argued, for the trial court to acquit the accused for non- appearance of the complainant in view of Section 256 of the Code (see Associated Cement Co. Ltd versus Keshav Chand, AIR 1998 SC 596). No ground for interference under Section 482 of the Code is made out.

8. The petitions are accordingly dismissed.

9. It is clarified that on other aspects, the matter is being examined by the learned Chief Metropolitan Magistrate. Learned counsel for the petitioner states that he has already filed an application before the Hon'ble the Acting Chief Justice on administrative side. These aspects are not being examined and this order is limited and decides the contention raised that the petitioner-accused should have been acquitted due to non-appearance of the complainant.

SANJIV KHANNA, J.

       APRIL 23, 2010
       VKR




CRL.M.C. Nos. 1291/2010 & 1292/2010                                    Page 3