Delhi High Court
Kalpana Tyagi vs Sneh Lata Sharma on 17 March, 2003
Equivalent citations: 2003IIIAD(DELHI)187, II(2003)BC536, 2003CRILJ3395, 104(2003)DLT127, 2003(68)DRJ14, 2003 CRI. L. J. 3395, (2003) 6 ALLINDCAS 924 (DEL), (2003) 1 CHANDCRIC 332, (2003) 3 RECCRIR 340, (2003) 2 BANKCAS 536, 2003 CHANDLR(CIV&CRI) 17, (2003) 2 PUN LR 4, (2003) 104 DLT 127, (2003) 68 DRJ 14
Author: R.C. Chopra
Bench: R.C. Chopra
JUDGMENT R.C. Chopra, J.
1. These two petitions under Sections 482 of the Code of Criminal Procedure (hereinafter referred to as "the Code" only) are directed against orders dated 21.2.1993 passed by the learned Metropolitan Magistrate dismissing in default the complaints filed by the petitioner under Section 138 of the Negotiable Instruments Act (hereinafter referred to as" the Act" only). Both the complaints filed by the petitioner were dismissed when none had appeared on her behalf but the accused respondent was present with her Counsel. The revisions filed by the petitioner against the said orders were dismissed by the learned ASJ vide orders dated 22.7.1994.
2. I have heard learned Counsel for the petitioner and learned Counsel for the respondents. I have gone through the records.
3. Before adverting to the question as to whether the complaints dismissed in default should be restored or not, this Court has been called upon to decide as to whether the revisions filed by the petitioner before the learned ASJ were maintainable as Section 256 of the Code specifically says that in respect of trial of a summons case by a Magistrate, if the complainant does not appear on the date appointed for the appearance of the accused or any day subsequent thereto to which the hearing may be adjourned, 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. It is submitted that Section 256 of the Code does not make it obligatory upon a Magistrate to dismiss a complaint on account of absence of the complainant but once he choses to dismiss the complaint the consequences as detailed in Section 256 of the Code follow and the accused gets acquitted. Learned Counsel for the respondent argues that in view of dismissal of the complaints filed by the petitioner under Section 256 of the Code the Revisions before the learned ASJ were not even maintainable as only appeals could be filed in terms of Section 378 of the Code. It is contended that since the revisions filed by the petitioners were not maintainable, this Court cannot be called upon to invoke its inherent powers under Section 482 of the Code to set aside the orders passed by learned ASJ or the orders of dismissal of complaints filed by the learned Metropolitan Magistrate.
4. Learned Counsel for the petitioner on the other hand argues that the revisions against orders dismissing the complaints in default were maintainable and in exercise of powers under Section 482 of the Code also this Court can pass necessary orders to secure the ends of justice.
5. Learned Counsel for the petitioner has relied upon the judgments in Manisha Trading Private Ltd. v. State & Others Glaxie Plywood Industries (P) Ltd. v. Vijay Kumar, reported in 87 (2000) DLT 152; Ajay Khuruna v. Anil Cloth House through Prop. Sh. Anil Kumar, reported in 1999(1) JCC 3; and Continental Papers Ltd. v. Darshanb Print Pack (P) Ltd., reported in 102 (2003) DLT 18. On the other hand, learned Counsel for the respondent has relied upon the judgments reported in Associate Cement Co. Ltd. v. Keshav Anand, reported in 4 (1998) CCR 82 (SC), Shiv Kumar v. Mohd. Saghir & Ors. reported in 1997 JCC 149 and Kumaresan v. Girirajan, reported in II (1999) BC 136.
6. A perusal of the judgmens relied upon by learned Counsel for the parties shows that in the case of Manisha Trading Private Limited v. State & Ors. (supra), this Court had not examined the question as to whether an order dismissing a complaint in default in a summons trial's case could be challenged by way of an appeal or revision. In the cases of Glaxie Plywood Industries (P) Ltd. and Ajay Khurana (supra), restoration was ordered under Section 482 of the Cr.P.C as the complaint had been dismissed prior to the summoning of the accused. In the case of Continental Paver Limited (supra), a learned Single Judge of this Court allowed restoration of the complaint by exercising powers under Section 482 of the Cr.P.C, but the judgment does not disclose as to whether dismissal of the complaint was at a pre-summoning stage or post-summoning stage. In the judgments of Associated Cement Company Limited, Shiv Kumar and Kumaresan (supra), relied upon by learned Counsel for the respondent, the Courts were dealing with appeals only, which were directed against the orders dismissing the complaints in default. However, in none of these judgments the question as raised in these petitions was directly considered and pronounced upon.
7. A plain reading of Section 256 of the Code makes it abundantly clear that this Section covers only those cases where summons have been issued on a complaint and either 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. This provision does not come into play prior to the issuance of summons to an accused and as such a complaint dismissed at pre-summoning stage does not result in acquittal of an accused in terms of Section 256 of the Code. If an accused has not been summoned even there can be no acquittal in his favor. However, once the accused has been summoned and the complainant does not appear on the date appointed for the appearance of the accused or any day subsequent thereto to which the hearing may be adjourned the Magistrate is under a duty to acquit the accused unless for some reason he does not dismiss the complaint and thinks it proper to adjourn the hearing of the case to some other day. The proviso to the Section 256 of the Code further says that where the complainant is represented by a pleader or by officer conducting the prosecution or where the Magistrate is of the opinion that the personal attandance of the complainant is not necessary the Magistrate may dispense with his attendance and proceed with the case. It is, therefore, manifest that this provision gives a wide discretion to the Magistrate in the matter of dismissal of a complaint in default and empowers him to adjourn the hearing even in the absence of the complainant but once the Magistrate choses to exercise his discretion in favor of dismissal of the complaint the consequence of acquittal of the accused follows against which no revision is maintainable and only an appeal can be filed in terms of Section 378 of the Code.
8. A distinction, therefore, has to be drawn in regard to the complaints dismissed prior to the summoning of an accused and those dismissed subsequent to the summoning of the accused if a complaint is dismissed prior to the summoning of an accused the order may be challenged by way of filing a revision but once Section 256 comes into play, the dismissal of a complaint has the effect of acquittal of an accused and only an appeal can be filed under Section 378 of the Code to challenge his acquittal.
9. In this view of the matter, this Court is of the considered opinion that the impugned orders passed by the learned Metropolitan Magistrate on 21.12.1993, which were passed after summoning and in the presence of the respondent-accused, Section 256 of Code had come into play and the dismissal of complaints resulted in acquittal of the respondent against which only appeals could be filed. Thus, the revisions filed by the petitioners were not maintainable and as such this Court cannot in exercise of powers under Section 482 of the Code set aside the impugned orders.
10. The petitions, therefore, stand dismissed.
Before parting with this order, this Court wishes to emphasise that Courts dealing with private complaints should not show undue haste to dismiss complaints in default of appearance of complainants at pre-summoning or post-summoning stage. Such dismissals are followed by restoration applications and thereafter revisions or appeals and thus add to the already overflowing dockets of Courts at all levels. If a complainant happens to be absent, the matter may be adjourned for a longer date so that the complainant may, if interested, appear on the next date and pursue his complaint. However, the Courts need not countenance or show any indulgence to habitual defaulters.