Rexnoil Lubricants & Ors vs Adesh Gupta
2012 Latest Caselaw 3886 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                            Crl. M.C. NO.2464/2011

                                        Date of Decision: 04.07.2012

REXNOIL LUBRICANTS & ORS. ......         Petitioners
             Through: Mr.S.K. Sood, Adv.

                             Versus

ADESH GUPTA                              ......        Respondent
                        Through: None

CORAM:
HON'BLE MR. JUSTICE V.K. SHALI

V.K. SHALI, J. (Oral)

Crl. M.A. Nos.7842-43/2011

1. This is a petition filed by the petitioners under Section 482

Cr.P.C., praying therein for setting aside the orders dated

8.11.2000 and 21.1.2011.

2. So far as the order dated 8.11.2000 is concerned, it is an

order summoning the petitioners in respect of an offence

under Section 138 of the Negotiable Instruments Act, 1881

(hereinafter referred to as NI Act).

3. By virtue of the order dated 21.1.2011, the application of the

petitioners under Section 256 Cr.P.C. for discharge was

rejected.

4. Briefly stated, the facts of the case are that the respondent

had filed a complaint under Section 138 of the NI Act against

the present petitioners. After adducing pre-summoning

evidence, the Court was pleased to pass an order on

8.11.2000, summoning the accused persons for their trial in

respect of the offence. It took considerable time to serve the

petitioners.

5. The petitioners, by virtue of the present petition, has

challenged the order of summoning after a lapse of almost 11

years. This prayer of the petitioners is hopelessly barred by

latches and inordinate delay and, therefore, cannot be

entertained. The summoning order, after a lapse of 11 years,

cannot be set aside, therefore, to that extent, the prayer of

the petitioners is not maintainable.

6. So far as the prayer of setting aside the order dated

21.1.2011 is concerned, the petitioners had filed an

application under Section 256, Cr.P.C.. The said Section reads

as under:-

256. Non-appearance or death of complainant (1) If the summons has been issued on complaint and on the day appointed for the appearance of the accused, or

any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall notwithstanding anything hereinbefore contained, acquit the accused unless for some reason he thinks it proper to adjourn the hearing of the case to some other day:

Provided that where the complainant is represented by a pleader or by the officer conducting the prosecution or where the Magistrate is of opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case.

(2) The provisions of sub-section (1) shall, so far as may be, apply also to cases where the non-appearance of the complainant is due to his death.

7. A perusal of the aforesaid Section would clearly show that the

Section does not deal with the question of discharge of the

accused on merits. It only talks about that in case the

complainant does not appear in a summons case, after the

summoning order is passed, the learned Magistrate is not

bound to adjourn the matter. He can dismiss the complaint

and acquit the accused.

8. Therefore, so far as the application under Section 256 Cr.P.C.

is concerned, the same was not maintainable as the

complainant was present. The application was rightly

dismissed by the learned Metropolitan Magistrate. Apart from

this, it may be mentioned that the petition came up for

hearing for the first time on 1.8.2011 and it was dismissed for

non-prosecution at 2:45 P.M. as nobody appeared even at the

second call. The petitioners thereafter filed an application for

restoration of the petition, which was allowed on 12.10.2011

and the learned counsel for the petitioners, after brief

submissions, sought time to address the Court. The matter

was adjourned to 6.2.2012. On 6.2.2012, the petitioners were

directed to place on record the Trial Court record, as a

number of points were raised in that regard. The matter was

adjourned to 22.2.2012. On 22.2.2012, again the petitioners

did not appear and consequently the petition was again

dismissed for non-prosecution.

9. The petitioners have now, after a lapse of almost four months,

filed an application bearing Crl. M.A. No.7842/2012, for

restoration of the petition along with an application bearing

Crl.M.A. No.7843/2012 for condonation of delay of 69 days in

filing the application for restoration of the petition. Neither

any cogent reason has been given by the petitioners for their

non-appearance on 22.2.2012 nor any sufficient cause has

been shown by them for filing the application for restoration

of the petition belatedly. It seems that the petitioners are

taking the filing of the petition too casually. I do not think that

it is a fit case where sufficient cause has been shown by the

petitioners for condonation of delay in filing the application for

restoration of the petition and accordingly the same is

dismissed. Even on merits, the points, which are being urged

by the petitioners, are the questions to be adjudicated by the

learned Trial Court after the parties have been permitted to

adduce the evidence. So far as the rejection of the

application for discharge is concerned, that has no merit.

10. The applications are, accordingly, dismissed.

V.K. SHALI, J.

04 July, 2012 tp