Delhi District Court
Krishan Kumar vs Dr Hans Kumar Jain on 15 January, 2022
IN THE COURT OF SH. DEVENDER KUMAR, ADDITIONAL SESSIONS
JUDGE-02(NE), KARKARDOOMA COURTS, DELHI.
Cr. Rev. No. 37/2021
U/s: 138 of NI Act
PS Gokal Puri
Krishan Kumar
S/o Sh. Ramesh Singh,
C/o Pooran Chand Panday,
R/o H. N. F-209, Gali No-4,
Ganga Vihar, Karawal Nagar,
North East, Delhi. ...Revisionist
Versus
Dr Hans Kumar Jain
S/o Sh. Raj Kumar Jain,
R/o H.No. 328, Gali No.15,
Near Chhota Jain Mandir,
District Ghaziabad,
Uttar Pradesh ...Respondent
Date of assignment : 04.10.2021
Date of Arguments : 10.01.2022
Date of Pronouncement : 15.01.2022
JUDGMENT:
1. Vide this judgment I shall decide a Criminal Revision Petition filed by the Revisionist against the order dated 02/09/2021 by which Ld. Trial Court dismissed a Criminal Complaint u/s 138 NI Act in default for non-appearance of Complainant.
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2. Arguments of both parties heard. Trial Court record perused.
3. Ld. Counsel for Revisionist has submitted that the Revisionist had filed a Criminal Complaint u/s 138 NI Act against the dishonour of a cheque of Rs. 78,800/- and Ld. Trial Court summoned the accused and even accused also appeared to contest the Criminal Complaint. However, Revisionist/Complainant failed to appear before the Ld. Trial Court, consequently Criminal Complaint was dismissed for non- appearance of Complainant u/s 256 Cr.PC. It is further argued that the order of dismissal passed by Ld. Trial Court bearing illegality and infirmity and same is liable to be set aside.
4. On the other hand, Ld. Counsel for Respondent has opposed this Revision Petition on the ground that the order passed by Ld. CMM is legal and valid in view of the non-appearance of the Revisionist or his Counsel before the Ld. Trial Court and the same is liable to be affirmed. It is further argued that the accused had already appeared before the Court of Ld. CMM to contest this case, whereas Complainant failed to appear repeatedly and this dismissal of Criminal Complaint amounts to acquittal of accused/ Respondent in this case, and in case of any challenge against acquittal, leave of the Hon'ble High Court is required to maintain an appeal, due to this Revision is liable to be dismissed. It is further argued that the Complainant was required to file an appeal against the order of Ld. CMM and this Revision Petition is liable to be dismissed.
5. Ld. Counsel for the Respondent has relied following judgments to support of his arguments as under:
1. V.K.Bhat vs G.Ravi Kishore, Criminal Appeal No(s).184 of 2016 Dated 29 February, 2016,
2. 2015 (4) LRC 258 (Del) titled North Delhi Power Ltd Vs. Sarover Hospital & Anr.
3. 2002 CRI. L. J. 4741 (H P) titled Him Advances and Savings Pvt. Ltd. v. Ravinder CR No. 37/2021 Krishan Kumar Vs. Dr. Hans Kumar Jain 2/8
6. I have heard the arguments and perused the record. Admittedly, this Revision Petition has been preferred against the order of dismissal of a Criminal Complaint u/s 138 of NI Act on failure of appearance of complainant before the Ld. Trial Court. Dismissal of a Criminal Complainant for non-appearance of a Complainant is legalized in terms of Section 256 Cr.PC which is 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 ad-
journed, the complainant does not appear, the Magistrate shall, notwith- standing 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. In view of the above said section, it stands cleared that if Ld. MM does not choose to adjourn a Criminal Complaint, in the absence of appearance of a Complainant or his Counsel, he has to acquit accused on dismissal of a complaint. In case of acquittal, only appeal may be filed with the leave of the Hon'ble High Court in terms of Section 378 of CrPC, which is as under;
378. Appeal in case of acquittal:-
(1) Save as otherwise provided in sub- section (2) and subject to the provisions of sub- sections (3) and (5), the State Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any Court other than a High Court 2 or an order of acquittal passed by the Court of Session in revision.] CR No. 37/2021 Krishan Kumar Vs. Dr. Hans Kumar Jain 3/8 (2) If such an order of acquittal is passed in any case in which the offence has been investigated by the Delhi Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946 (25 of 1946 ), or by any other agency empowered to make investigation into an offence under any Central Act other than this Code, the Central Government may also direct the Public Prosecutor to present an appeal, subject to the provisions of sub- section (3), to the High Court from the order of acquittal.
(3) No appeal under sub- section (1) or sub- section (2) shall be entertained except with the leave of the High Court.
(4) If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court.
(5) No application under sub- section (4) for the grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of six months, where the complainant is a public servant, and sixty days in every other case, computed from the date of that order of acquittal.
(6) If in any case, the application under sub- section (4) for the grant of special leave to appeal from an order of acquittal is refused, no appeal from that order of acquittal shall lie under sub- section (1) or under sub-
section (2).
8. In view of Section 378(4), it is clear that Special Leave of the Hon'ble High Court is required to file an Appeal against the acquittal of an accused and this legal proposition is well applicable against all Criminal Complaints including a Complaint u/s 138 of NI Act. This section came into interpretation before the Hon'ble High Court of Delhi in case titled 2015 (4) LRC 258 (Del) titled North Delhi Power Ltd. Vs. Sarover Hospital & Anr. and the observation of the Hon'ble court is as under;
11. From the aforesaid statutory scheme, it is abundantly clear that against an order of acquittal passed in any case instituted upon a complaint, the' complainant may: approach the High Court to seek special leave to appeal, and unless such leave is sought and granted, the appeal against the order of acquittal shall not lie.
As such, it stands cleared that leave of the Hon'ble High Court is required to file an CR No. 37/2021 Krishan Kumar Vs. Dr. Hans Kumar Jain 4/8 Appeal against an acquittal and even simple Appeal without leave is also not maintainable.
9. The Hon'ble Supreme Court had dealt with Section 256 CrPC in case titled V.K. Bhat v. G. Ravi Kishore, (2016) 13 SCC 243 and the observation of the Hon'ble Supreme Court is as under
7. The learned counsel duly took us to Sections 256, 378, 397(3), 399 and 401(4) of the Code of Criminal Procedure and submitted that in accordance with Section 256, if the summons has been issued on complaint, the Court has power to dismiss the said complaint when a complainant does not appear before the court to pursue the complaint or for any other reason, and in such a case, the Magistrate shall acquit the accused. Therefore, in the instant case, the dismissal of the complaint tantamounts to acquittal of the appellant.
10. After hearing the learned counsel for the parties, we find that there is some force in the submissions made by the learned counsel appearing for the appellant and we hold, in the facts of the case, that dismissal of the complaint for non-appearance of the complainant amounts to acquittal as contemplated in Section 256 of the Code of Criminal Procedure.
Similar legal proposition has been laid down by the Hon'ble High Court in case titled Ravi Sharma v. State (NCT of Delhi), 2009 SCC OnLine Del 2356 that where the Complainant was absent and complaint dismissed in default under Section 256 CrPC that results into statutory acquittal of an accused and Appeal is maintainable in such case with the leave of the Hon'ble High Court as envisaged under Section 378 (4) of CrPC.
10. Perusal of the Trial Court record would show that accused had already appeared before the Ld. Trial Court on 26.09.2019 and matter was referred to Mediation. Thereafter, Complainant appeared in person on 31/03/2021 and Bailable Warrant was issued against accused, but thereafter, accused failed to appear on 04/08/2021 through VC and even on 02/09/2021 during physical hearing when this Complaint was dismissed in default u/s 256 Cr.PC. In such circumstances, only CR No. 37/2021 Krishan Kumar Vs. Dr. Hans Kumar Jain 5/8 Appeal lies with the special leave of the Hon'ble High Court and this Revision Petition is not maintainable.
11. However, Ld. Counsel for the Revisionist has further argued that Complainant is also a 'victim' to this Complaint and this Revision Petition may be treated as an Appeal and may be allowed. No doubt a right of Appeal has been given to a 'victim' under section 372 (proviso) by inserting an amendment and this Right of Appeal is an independent right for which no special leave of the High Court is required against acquittal. But before coming to any conclusion, relevant sections authorizing the 'victim' to file an Appeal have to be considered as under:
Section- 2 (wa) "victim" means a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression "victim" includes his or her guardian or legal heir;] Section - 372. No appeal to lie unless otherwise provided.--No appeal shall lie from any judgment or order of a Criminal Court except as provided for by this Code by any other law for the time being in force:
[Provided that the victim shall have a right to prefer an appeal against any order passed by the Court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation, and such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court.]
12. In view of the above said both sections, it is clear that 'Victim' and 'Complainant' are two different denotations and are not synonyms to each other and both may be different persons. It is not necessary that 'Victim' may also be a 'Complainant' and 'Victim' may be a person who was/is related to a deceased in a criminal case instituted upon a police report on behalf of State, whereas 'Complainant' is a prosecutor of a complaint case personally like prosecution in State case. 'Victim' has been given right to challenge an acquittal to get justice, but similar immunity cannot be exercised by a Complainant who has failed to prosecute an accused CR No. 37/2021 Krishan Kumar Vs. Dr. Hans Kumar Jain 6/8 successfully. As such, Complainant cannot take double benefit in the capacity of 'Complainant' as well as 'Victim'. In such eventuality where complainant failed to appear and accused has acquitted, Section 378(4) would come into play and he has to seek special leave of the Hon'ble High Court to file an Appeal against this acquittal as laid down by 2015 (4) LRC 258 (Del) titled North Delhi Power Ltd Vs. Sarover Hospital & Anr.(Supra).
13. In the present case, Revision Petition has been filed u/s 397 CrPC, whereas Section 401 of CrPC negates this remedy as remedy of Appeal is available to the Complainant and such relief of Revision cannot be allowed. In fact, Revisionist has an alternative remedy of appeal with the special leave of the Hon'ble High Court in terms of Section 378(4) of CrPC and cannot maintain this Revision. Similarly, the prayer of Revisionist to convert this Revision Petition into Appeal also cannot be allowed as this court cannot grant a special leave to file an Appeal against acquittal to maintain appeal in terms of section 378(4) of Cr.PC, accordingly this Revision Petition is not maintainable, hence dismissed.
14. TCR be sent back to Ld. Trial Court along-with copy of this order / Judgment.
15. Copy of the judgment also be sent to both parties through e-mail. Revision petition be consigned to Record Room.
Announced in open court (Devender Kumar)
today on 15.01.2022 Additional Sessions Judge-02
(NE): Karkardooma Courts, Delhi.
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CERTIFICATE:-
It is certified that arguments of the abovesaid Revision Petition have been heard during virtual hearing and judgment has also been pronounced through VC in the presence of both parties. Both the parties have been explained the outcome of this appeal in vernacular and proceedings are correct.
(Devender Kumar) Additional Sessions Judge-02 (NE): Karkardooma Courts, Delhi 15.01.2022 CR No. 37/2021 Krishan Kumar Vs. Dr. Hans Kumar Jain 8/8