Delhi High Court
Mohini Kaul vs State & Anr. on 21 July, 2011
Author: Suresh Kait
$~31
*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Crl.L.P. No.287/2011
% Judgment delivered on:21st July, 2011
MOHINI KAUL ..... Appellant
Through: Mr. B. Roy, Adv.
versus
STATE & ANR. ..... Respondent
Through:Mr. M.P. Singh,
APP for State
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT
1. Whether the Reporters of local papers may be allowed to
see the judgment? Yes.
2. To be referred to Reporter or not? Yes.
3. Whether the judgment should be reported
in the Digest? Yes.
SURESH KAIT, J.(Oral)
CRL. M.A.7952/2011(Exemption)
Allowed subject to all just exceptions.
CRL. M.A.7951/2011(Condonation of Delay)
For the reasons mentioned in the application, the same is
allowed and the delay in filing the appeal is condoned.
CRL. M.A.7953/2011(Condonation of Delay in re-filing)
For the reasons mentioned in the application, the same is
allowed and the delay in re-filing the appeal is condoned.
CRL. L.P. 287/2011
1. The petitioner has assailed the order dated 06.10.2010
passed by Sh. Praveen Singh, Judge, Small Cause Court cum-
Addl. Sr. Civil Judge, New Delhi, which reads as under:-
"16.10.2010
At 2.15PM
Present: None.
Despite several calls since morning,
none on behalf of the complainant. The
complaint is accordingly dismissed in
default, the accused stands acquitted. File
be consigned to the record room.
Praveen Singh
Judge, Small Cause Court
Cum-Addl. Sr. Civil Judge,
New Delhi
16.10.2011"
2. Being aggrieved by the aforesaid order, the petitioner filed
a revision petitioner under Sections 397/399/400 Cr.P.C., 1973
before the Sessions court wherein, the learned Additional
Sessions Judge, Saket, Saket Court, New Delhi vide order dated
27.01.2011 dismissed the revision filed by the complainant being
non-maintainable.
3. The learned Additional Sessions Judge has relied upon the
case of Krisan Kumar Gupta vs. Mohammed Jaros and another,
2003(1)R.C.R.(Criminal)127, wherein it was held as under.
" A. Criminal Procedure Code, Section
256-negotiable Instruments Act, Section 138-
Dismissal of complaint in default-It results in
acquittal of accused-Appeal against acquittal
would lie to High Court and non revision-
Revision before Sessions Court is without
jurisdiction. 1998(1)RCR(Crl.) 309(SC) relied
on."
4. Therefore, the petitioner has filed this instant petition
mainly against the order dated 16.10.2010 passed by the
learned Trial Judge.
5. I have perused the record which shows that the complaint
was initially listed before the Trial Judge on 21.07.2009, on which
the learned counsel for the complainant was present, and same
was the position on 16.01.2010 and 19.07.2010.
6. The only date on which neither the complainant nor his
advocate appeared was on 16.10.2010, on which date the
complaint was dismissed in default.
7. In my view, the learned trial court has erred in dismissing
the complaint in default. At least one more opportunity should
have been given to the complainant instead of dismissing the
complaint. Law is very settled on this issue as was decided in
Mohd. Azeem vs. A. Venkatesh and Another (2002) 7 SCC
726, the relevant paragraphs read as under:-
3. From the contents of the impugned
order of the High Court, we have noticed that
there was one singular default in appearance
on the part of the complainant. The learned
Judge of the High Court observes that even
on earlier dates in the course of trial, the
complainant failed to examine the witnesses.
But that could not be a ground to dismiss his
complaint for his appearance (sic absence) on
one single day. The cause shown by the
complainant of his absence that he had
wrongly noted the date, has not been
disbelieved. It should have been held to be a
valid ground for restoration of the complaint.
4. In our opinion, the learned Magistrate
and the High Court have adopted a very strict
and unjust attitude resulting in failure of
justice. In our opinion, the learned Magistrate
committed an error in acquitting the accused
only for absence of the complainant on one
day and refusing to restore the complaint
when sufficient cause for the absence was
shown by the complainant.
5. The impugned orders dated 22-6-2001 of
the Metropolitan Magistrate and dated
24-7-2001 of the High Court respectively, are
set aside. The complaint is restored and
learned Magistrate is directed to proceed
with the trial of the case after issuance of
formal notices to both the parties of the next
date to be fixed in the case. The learned
counsel appearing for the parties are directed
to inform the parties to appear before the
Court of Metropolitan Magistrate on or before
9-9-2002 to ascertain the date fixed by the
trial Judge for the case.
9 Keeping in view the abovesaid discussion, I set aside the
orders dated 16.10.2010 and 27.012011 and restore the
complaint before the Trial Judge.
10 The petitioner is directed to appear before the Trial Judge
on 27.07.2011 and thereafter the Trial Judge shall issue notice to
the respondent.
11 CRL. L.P. No. 287/2011 is allowed in the above terms.
SURESH KAIT, J
JULY 21, 2011
j
