Delhi High Court
Raj Kishore Sharma vs State & Anr on 17 March, 2016
$~65 to 68
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision : 17th March, 2016
+ CRL.L.P. 85/2014
RAJ KISHORE SHARMA ..... Petitioner
Through: Mr.Rajni Kant, Advocate
versus
STATE & ANR ..... Respondents
Through: Ms.Kusum Dhalla, APP for the
State/R-1.
Sh.Kapil Kashyap, son of respondent
No.2.
AND
+ CRL.L.P. 118/2014
RAJ KISHORE SHARMA ..... Petitioner
Through: Mr.Rajni Kant, Advocate
versus
STATE & LAXMI ..... Respondents
Through: Ms.Kusum Dhalla, APP for the
State/R-1.
Sh.Kapil Kashyap, son of respondent
No.2.
AND
+ CRL.L.P. 119/2014
RAJ KISHORE SHARMA ..... Petitioner
Through: Mr.Rajni Kant, Advocate
versus
STATE & LAXMI ..... Respondents
Through: Ms.Alpana Pandey, APP for the
State/R-1.
Crl.L.P. Nos.85, 118, 119 & 120 of 2014 Page 1 of 9
Sh.Kapil Kashyap, son of respondent
No.2.
AND
+ CRL.L.P. 120/2014
RAJ KISHORE SHARMA ..... Petitioner
Through: Mr.Rajni Kant, Advocate
versus
STATE & LAXMI ..... Respondents
Through: Ms.Alpana Pandey, APP for the State
CORAM:
HON'BLE MS. JUSTICE PRATIBHA RANI
PRATIBHA RANI, J. (Oral)
Crl.M.A.No.1659/2014 in Crl.L.P.No.85/2014
Crl.M.A.No.2320/2014 in Crl.L.P.No.118/2014
Crl.M.A.No.2325/2014 in Crl.L.P.No.119/2014
Crl.M.A.No.2327/2014 in Crl.L.P.No.120/2014
1. For the reasons stated in the applications, the delay in filing the leave
petitions is condoned.
2. Applications stand disposed.
Crl.L.P.No.85/2014
Crl.L.P.No.118/2014
Crl.L.P.No.119/2014
Crl.L.P.No.120/2014
1. Leave granted. The Registry is directed to register the petitions as
appeals.
2. The appellant Raj Kishore Sharma is aggrieved by the order dated
19.09.2012 whereby the Complaint Cases No.207/1, 105/1, 107/1 & 106/1
filed by him against the respondent No.2 herein for committing the offence
punishable under Section 138/142 NI Act have been dismissed in default by
learned Metropolitan Magistrate.
3. The impugned order dated 19.09.2012 was challenged by the appellant
by filing revision petitions, which were dismissed as not maintainable by the
learned ASJ vide order dated 27.07.2013.
4. Thereafter the appellant filed these appeals impugning the order of
acquittal passed by learned MM while dismissing in default the complaint
cases filed by him for the offences punishable under Section 138/142 NI Act.
5. Notice of the petition was issued to respondent No.2.
6. Respondent No.2 failed to appear but her son namely Kapil Kashyap
had appeared on 16th March, 2016. The son of the respondent No.2 was
directed to produce the respondent No.2 in the Court today.
7. Today again Sh.Kapil Kashyap, son of respondent No.2 has appeared
and stated that his mother is indisposed and she is unable to appear today.
8. Learned counsel for respondent No.2 has been awaited till 3.15 pm but
thereafter neither the son of the respondent No.2 nor her counsel has
appeared.
9. The impugned order whereby the complaint cases filed by the
appellant have been dismissed in default, reads as under :-
19.09.2012 at 1145 pm
Pr:- None for the complainant despite repeated calls.
Accused is present on bail.
The matter is listed today for final arguments and for
appearance of the complainant. The complainant has remained
physically absent in this Court since 23.04.2012 on four occasions
including today. In between, on 07.06.2012 exemption request
was allowed at behest of counsel for the complainant. Despite
issuance of Court notice and service thereof, the complainant had
not appeared. Be put up at 2 pm for appearance of the
complainant.
Sd/-
(ACMM-01 Delhi)
19.09.2012
At 2.50 pm
Pr: None for complainant.
Sh.Adarsh Saini counsel for accused with accused.
Today, the matter is at the stage of final arguments. The
complainant has chosen not to appear before this Court despite
opportunities given by this Court. I have examined the complaint,
evidence on record and documents with a view to ascertain
whether the personal attendance of the complainant can be
dispensed with in terms of proviso to Section 256 Cr.P.C. and I am
of the considered view that the presence of either the complainant
or his counsel is required for proceeding further.
In the given circumstances, only option left with the Court,
keeping in view the absence of the complainant is to proceed
against him under Section 256(1) Cr.P.C. As the complainant has
failed to appear, the present complaint case is dismissed in default
of appearance. In result, accused is acquitted. File be consigned
to record room.
Sd/-
(ACMM-01 Delhi)
19.09.2012'
10. The proceedings dated 19.09.2012 reveals that the case was at the
stage of final arguments. If for some reason, the complainant was not
present, the Court could have proceeded to dispose of the matter after
considering the evidence adduced by the parties. At the stage of final
arguments, for non-appearance of the complainant, the complaint cases could
not have been dismissed in default.
11. In the complaint is tried as 'summary trial' under Section 256 of Code
of Criminal Procedure, the Magistrate has discretion to dismiss the complaint
if on any date fixed for hearing the complainant fails to appear in the Court.
At the same time, if the Magistrate finds that there is some reason or that the
presence of the complainant was not required, he in his discretion can
adjourn the complaint.
12. A perusal of the order dated 22.08.2012, by which the case was listed
for 19.09.2012, on which date it came to be dismissed in default, shows it
was listed final arguments for which personal appearance of the complainant
was not required.
13. Section 143 of NI Act provides that the cases under Section 138 NI
Act shall be tried summarily by a Judicial Magistrate of First Class or by a
Metropolitan Magistrate and the provisions of Sections 262 to 265, (both
inclusive) of the Code of Criminal Procedure shall, as far as may be, apply to
such trials.
14. Code of Criminal Procedure in Chapter XXI prescribes procedure to
be followed in Summary Trials. Section 262 CrPC provides that the
procedure specified for trial of summons case shall be followed, except as
mentioned in Section 262 Sub-Section (2). The sentence which can be
awarded by following the summary trial procedure in a case under Section
138 NI Act is governed by Section 143(1) of NI Act.
15. In the case Rajesh Agarwal vs. State & Anr. 171 (2010) DLT 51
while disposing of three petitions i.e. Crl.M.C. No.1996/2010, 1700/2009
and 1397/2010, feeling concerned that the High Court is being flooded with
the petitions under Section 482 CrPC for quashing the complaints under
Section 138 NI Act and the grounds on which generally the quashing was
sought, the learned Single Judge highlighted the objective of the proceedings
under Section 138 NI Act. The learned Single Judge also considered that
this situation has arrived for the reason that the lower Courts are not
following the mandate of the Statute of conducting trial of the cases under
Section 138 of NI Act in a summary manner and despite amendment in NI
Act, continue trying these cases as summons trial cases and a long drawn
procedure is followed. Para 17 of the report giving summary trial procedure
to be followed for offences under Section 138 NI Act, is extracted as under:
'17. The summary trial procedure to be followed for offences
under Section 138 N.I. Act would thus be as under:
Step I : On the day complaint is presented, if the complaint is
accompanied by affidavit of complainant, the concerned MM
shall scrutinize the complaint & documents and if commission
of offence is made out, take cognizance & direct issuance of
summons of accused, against whom case is made out.
Step II : If the accused appears, the MM shall ask him to furnish
bail bond to ensure his appearance during trial and ask him to
take notice under Section 251 Cr.P.C. and enter his plea of
defence and fix the case for defence evidence, unless an
application is made by an accused under Section 145(2) of N.I.
Act for recalling a witness for cross examination on plea of
defence.
Step III : If there is an application under Section 145(2) of N.I.
Act for recalling a witness of complainant, the court shall
decide the same, otherwise, it shall proceed to take defence
evidence on record and allow cross examination of defence
witnesses by complainant.
Step IV : To hear arguments of both sides.
Step V : To pass order/judgment.'
16. The learned Trial Court was required to follow the procedure
prescribed and dispose of the case on merits on the basis of evidence led in
the said cases. At the stage of final arguments, the Court could not have
dismissed the complaint cases for non-appearance of the complainant as his
presence was not required on that day. Similar view has been taken by the
High Court of Karanataka in the case of Venkatesh vs. M/s Samruddha
Builders and Developers & Anr. in Crl.A. No.336/2012 decided on
29.10.2014 wherein while disposing of the appeal preferred against the order
dismissing the complaint for non-appearance of the complainant, it was
observed as under:-
'2. The appeal considered for final disposal, having regard
to the circumstances of the case. The appellant was the
complainant before the Court below alleging an offence
punishable under Section 138 of the Negotiable Instruments,
Act, 1991 (hereinafter referred to as 'the NI Act', for brevity).
The appellant's statement was recorded by the Court below and
cognizance was taken. A case was registered and summons
were ordered to the respondents - accused. Though process
was paid from time to time, the service of summons was
awaited. It was at this stage that since the complainant had
failed to appear on a particular day, the Court has thought it fit
to dismiss the complaint for default.
3. Having regard to the law laid down and reiterated from
time to time by this Court to the effect that a complaint ought
not to be dismissed for default if the presence of the
complainant was not necessary or warranted, the Court ought
not to have mechanically dismissed the complaint for default.
4. In the presence case on hand, the writing in the order-
sheet not being legible and clear, the statement of the counsel
that there was nothing to be done by the complainant by being
present in Court and that the only requirement was furnishing
of process which was also complied with and the service of
summons was to be reported to the Court by the police, which
was awaited and hence, there was no requirement of the
presence of the complainant before the Court on the said day
and therefore, the dismissal of the complaint for default results
in a miscarriage of justice. The contention is to be accepted.
The appeal is therefore summarily allowed. The order of
dismissal is set aside. The matter is remanded to the Court
below for further steps, in accordance with law.'
17. In view of the above legal position, the impugned orders dated
19.09.2012 whereby the Complaint Cases No.207/1, 105/1, 107/1 & 106/1
filed under Sections 138/143 NI Act have been dismissed in default of
appearance of the complainant though the case was at the stage of final
arguments, are not sustainable in law.
18. The impugned orders dated 19.09.2012 passed in Complaint Cases
No.207/1, 105/1, 107/1 & 106/1 are hereby set aside. The Complaint Cases
restored to their original number. The parties are directed to appear before
the concerned Court on 5th April, 2016.
19. All the four appeals are allowed.
20. The complainant had to unnecessarily litigate for almost 3½ years for
getting his complaints restored though at the stage of final arguments,
complaints could not have been dismissed in default. The learned MM
should have disposed of the complaints by passing the orders on merits after
considering the material on record.
21. It is directed that after the parties appear before the learned Trial Court
on 5th April, 2016 as directed, the complaints shall be disposed of
expeditiously, preferably within a period of three months from that date.
22. A copy of this order be sent to the concerned Court for information
and compliance.
As prayed, copy of the order be given dasti to learned counsel for the
parties.
PRATIBHA RANI, J.
MARCH 17, 2016
'st'
