Saundhi Builders & Developers ... vs State & Anr.
2013 Latest Caselaw 886 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI
%                    Crl. M.C. No. 941/2011
+                             Date of Decision: 21st February, 2013

#      SAUNDHI BUILDERS & DEVELOPERS
       (PB) P. LTD. & ANR.                      ....Petitioner
!                          Through: Mr. J.M. Bari, Advocate


                              Versus

$      STATE & ANR.                                  ....Respondents
                          Through: Mr. M.N. Dudeja, APP for the State
                                   Mr. Tarun Chandiok, Advocate
                                   for R-2

       CORAM:
*      HON'BLE MR. JUSTICE P.K.BHASIN

                                ORDER

P.K.BHASIN, J:

By this petition under Section 482 of the Code of Criminal Procedure, 1973('Cr.P.C.' in short) the petitioners have prayed for the setting aside of the order dated 27th January, 2011 passed by the learned Additional Sessions Judge in revision petition no. 69/10 under Section 397 Cr.P.C. whereby the complaint case no.5757/06

filed by respondent no.2 herein under Section 138 of the Negotiable Instruments Act,1881, which was dismissed by the learned Metropolitan Magistrate on 14th July, 2010 due to non appearance of the complainant, was ordered to be restored.

2. The petitioner no.1 Company and petitioner no.2 who is one its Directors were the two accused in the complaint case and they have felt aggrieved by the order of the revisional Court restoring the dismissed complaint, which dismissal according to them had resulted in their acquittal since the trial Magistrate had after taking cognizance summoned them as accused, without giving any notice to them of the revision petition filed by the complainant-respondent no.2 against the Magistrate's order dismissing his complaint.

3. Notice of this petition was given to the respondent no.2- complainant who entered appearance through his counsel who simply supported the impugned order of the revisional Court. Counsel for the petitioners had contended that since the trial Magistrate had taken cognizance of the offence under Section 138 of the Negotiable Instruments and after recording the pre-summoning evidence of the complainant had summoned them the petitioners as accused vide order dated 13th September,2007 and then dismissed the complaint

vide his order dated 14th July,2010 and so that order, which was to their benefit, could not be set aside by the revisional Court without giving notice to them of the revision petition filed against the dismissal order by the complainant. It was also submitted that the revision petition even otherwise was not maintainable and only appeal could be filed against that order since the effect of the order of dismissal of the complaint was acquittal of the petitioners under Section 256(1) Cr.P.C. even though it was not specifically mentioned by the Magistrate in that order, because they had already been ordered to be summoned as accused when the complaint was dismissed in default.

4. In my view, I need not go into the question in the present case whether the revision petition was maintainable against the Magistrate's order dismissing the complaint in default because this petition deserves to be allowed for the reason that the revisional Court in any event could not have set aside the dismissal order passed by the Magistrate without giving notice of the revision petition to the petitioners herein who had been ordered to be summoned as accused in the complaint, though they had not been served by 14th July,2010 when the complaint came to be dismissed in default. The judgment of the Supreme Court in the case of "A.N. Santhanam Vs. K.

Elangovan", 2011(2) JCC 720 applies squarely to the facts of the case in hand. The law laid down in that case makes it amply clear that the Court in exercise of its revisional powers cannot pass any orders to the prejudice of an accused unless he has got an opportunity of being heard.

5. This petition is accordingly allowed and the impugned order of the learned Additional Sessions Judge is set aside. The matter is remanded back to the revisional Court with the direction to take afresh decision after giving an opportunity of hearing to the petitioners herein also and during that hearing it would be open to them to take the objection about the maintainability of the revision petition and if raised the same shall be dealt with in accordance with law since this Court has not gone into that question. For that purpose the case shall be taken up by the revisional Court on 4th April, 2013 at 2 p.m.

P.K. BHASIN, J.

February 21, 2013