Delhi District Court
K G Mishra vs Global Inforcom Ltd on 12 January, 2012
1
IN THE COURT OF SH. H.S. SHARMA DISTRICTJUDGE/ASJ,
NEW DELHI
Unique I D No. 02403R0001292010
Criminal Revision No. 05/2012
K G Mishra, Advocate
Chamber No. 123, Patiala House Courts
New Delhi .....Petitioner
Versus
1 Global Inforcom Ltd
th
DCM Building, 11 floor
16, Barakhamba Road
Connaught Place, New Delhi110001
Through its CMD/Directors ........ Respondent No.1
2 Sh Sandeep Kumar Jain (CMD)
Global Infocom Ltd
st
R/o Flat no. 103, 1 Floor
Nilgiri Apartments, 9, Barakhamba Road
New Delhi110001 ..... Respondent No. 2
3 Vipin Kumar Jain (Director)
Global Infocom Ltd.
R/o 61, Defence Enclave
Delhi110092
nd
2 Address: Address No. 2 and 3
th
DCM Building, 11 floor
16, Barakhamba Road
Connaught Place,
New Delhi110001.... Respondent No. 3
KG Mishra Vs Global Infocom Ltd Page No. 1 of 5
2
Date of institution of the case : 10.01.2012
Date on which it was received in this court: 10.01.2012
Date of hearing arguments
: 11.01.2012
Date of announcement of judgment : 12.01.2012
Present: Sh M G Mishra,( Adv), petitioner.
ORDER:
1 This revision is directed against the order dated 3.1.2012 vide which the complaint filed by the petitioner under section 138 of The Negotiable Instruments Act, ( hereinafter "the Act") was dismissed under section 256 Cr.P.C. and the respondents were acquitted.
2 The trial court record reveals that a complaint under section 138 of the Act was filed by the petitioner on 23.7.2010. Vide order dated 26.7.2010, the respondents were ordered to be summoned to face trial under section 138 of the Act. Summons were ordered to be served on the respondents. However, when, on 3.1.2012, nobody appeared on behalf of the petitioner, the complaint was dismissed vide the impugned order. 3 I have considered the submissions. 4 It has been submitted that the accused/respondents had not appeared. Earlier the file was not traceable and the case had been transferred.
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3 5 The trial court record reveals that the petitioner was present on 19.9.2011.
6 In the present case the Ld. Trial Court has dismissed the complaint in default.
7 What is the affect of such a dismissal had come up before the Hon'ble High Court in two different cases. In both the cases the affect of dismissal of the complaint in default had been discussed at length.
8 In KK Gupta Vs Mohd. Jaros and Another 2002 VIII AD (Delhi) 47, the accused was present but the complainant was absent on the date of hearing. The complaint was dismissed in default u/s 256 CrPC. The Hon'ble High Court after taking into account judgments rendered by Division Bench of Hon'ble High Court had held that the revision was not maintainable. In that case the Ld. Addl. Sessions Judge, had even after observing that the revision was not maintainable, took the view that powers under section 397 CrPC can be exercised. The complaint was ordered to be restored. It was held by the Ld. Addl. Sessions Judge that there was an illegality and defect in procedure. Against the order of the Ld. Addl. Sessions Judge, the accused had filed the petition u/s 482 CrPC and the Hon'ble High Court KG Mishra Vs Global Infocom Ltd Page No. 3 of 5 4 had set aside the order of the Ld. Addl. Sessions Judge. It was held that only an appeal was maintainable. 9 This very view was taken by the Hon'ble High Court in Kalpna Vs Sneh Lata 2003, Crl. L.J. 3395. 10 The argument that the accused had not appeared, therefore, the judgement is distinguishable on facts, is of no consequence in view of language of section 256 CrPC. 11 Section 256 CrPC reads as under: "256. Nonappearance 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 the 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 subsection (1) shall, so far KG Mishra Vs Global Infocom Ltd Page No. 4 of 5 5 as may be, apply also to cases where the non appearance of the complainant is due to his death."
12 This section does not require appearance of the accused. It only requires that "the summons has been issued on complaint."
13 In view of the above discussion, the revision is not maintainable before this court. The same is accordingly dismissed.
14 TCR be sent back with a copy of the order. 15 Copy of order be given to the petitioner (free of cost). 16 File be consigned to RR.
Announced in open court on dated 12.01.2012 (H.S.SHARMA) DISTRICT JUDGE/ASJ NEW DELHI All pages signed.
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6 IN THE COURT OF SH. H.S. SHARMA DISTRICTJUDGE/ASJ, NEW DELHI Unique I D No. 02403R0001292010 Criminal Revision No. 05/2012 K G Mishra, Advocate Versus Global Inforcom Ltd etc 12.1.2012 Present: None.
Vide separate order dictated to the steno, the revision is dismissed.
TCR be sent back with a copy of the order. Copy of order be given to the petitioner (free of cost). File be consigned to RR.
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