Delhi District Court
Ms. Jyoti Dabral vs . Ashok Anand Maharaj & Ors. Page 1 Of 5 on 7 March, 2023
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IN THE COURT OF SH. SANJAY GARG - I
PRINCIPAL DISTRICT & SESSIONS JUDGE,
EAST, KARKARDOOMA COURTS, DELHI
Crl. (R).116/2022
Jyoti Dabral
W/o Sh. Rajeev
R/o H. No. A-97,
Shalimar Garden Main,
Sahibabad, Ghaziabad,
U.P.
VERSUS
1. Sh. Ashok Anand Maharaj,
R/o 176, Village Bisrakh,
Sector -1, Greater Noida,
Tehsil Dadri,
District Gautam Budh Nagar,
U.P.
2. State of NCT of Delhi.
Date of Revision : 10.06.2022
Date of Judgment : 07.03.2023
JUDGMENT
1. The order impugned vide this revision petition is dated 23.04.2022, vide which the Ld. Trial Court on account of non- appearance of the complainant had dismissed the complaint for non-prosecution.
Crl. (R) 116/2022 Ms. Jyoti Dabral vs. Ashok Anand Maharaj & Ors. Page 1 of 5 :: 2 ::
2. Petitioner/complainant had filed a complaint under Section 138 NI Act against the respondent. Taking cognizance of the offence, after recording pre-summoning evidence, respondent was summoned as accused to face trial.
3. I have heard Sh. Tarun Aggarwal and Ms. Nisha Sharma, learned counsels for the petitioner and Sh. Gaurav Dalal, Ld. Counsel for respondent. I have also perused the trial court record.
4. Ld. Counsel for the petitioner has stated that this Court has discretion to restore the complaint and bar of Section 256 Cr.P.C.
is not applicable according to the facts of this case. In support of his contentions, he has relied upon the following judgments :
(i) Gurpreet Singh vs. M/s Ranbaxy Laboratories Ltd. & Anr., Crl. M.C. 429 of 2009 decided by Hon'ble Delhi High Court on 02.08.2010.
(ii) M/s Kalucha Paper House & Anr. vs. M/s Mahavir Papers & Anr., Crl. M.C. 3687/2009 & C.M. Appeal No. 12526/2009 decided by Hon'ble Delhi High Court on 02.08.2010.
(iii) Prakash Singh vs. Harpal Singh, CRR 402/2017 (O&M) decided by Hon'ble Punjab-Haryana High Court on 13.01.2023.
5. On the other hand, Ld. Counsel for the respondent has stated that as per Section 256 Cr.P.C., the order of dismissal amounts to acquittal of the accused and as per Section 378 (4) Cr.P.C., appeal against acquittal lies to the Hon'ble High Court, hence, this revision petition is not maintainable.
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6. Section 256 Cr.P.C. talks about the consequences happening on account of non-appearance or death of complainant. It provides that "If summons have been issued on complaint and on the day appointed for the appearance of the accused, or any day subsequent thereto, the complainant has not appeared, the Magistrate shall, notwithstanding anything hereinbefore contained, acquit the accused, unless for some reason he thinks it proper to adjourn the hearing for some other day." The word used is "shall" and it is "non obstante" clause. However, discretion has been given to the Court, for some reasons Court may adjourn the hearing to some other day instead of dismissing the complaint.
7. In support of his contentions, Ld. Counsel for petitioner has relied upon judgment Gurpreet Singh vs. M/s Ranbaxy Laboratories Ltd. & Anr. (Supra) and M/s Kalucha Paper House & Anr. vs. M/s Mahavir Papers & Anr. (Supra) . The ratio of these cases is not applicable to the facts of the present case. As there is no observations made by the Hon'ble High Court if the Sessions Court has power to entertain such revision petitions despite the bar of Section 256 Cr.P.C. and 378 (4) Cr.P.C.
8. The Ld. Counsel for petitioner has further relied upon the observations made by Punjab & Haryana High Court in case titled as Prakash Singh vs. Harpal Singh (Supra) . Here in para no. 9, the Court has observed that in Associated Cement Company Ltd. vs. Keshvanand (1998) 1 SCC 687, the Apex Court has observed that discretion u/s 256 Cr.P.C. must be Crl. (R) 116/2022 Ms. Jyoti Dabral vs. Ashok Anand Maharaj & Ors. Page 3 of 5 :: 4 ::
exercised judicially and fairly without impairing the cause of administration of criminal justice. Again the ratio of this judgment is not applicable to the facts of the present case.
9. As per the Trial Court record, on 09.04.2018, the respondent was summoned as an accused. Vide order dated 05.11.2018, bailable warrant in the sum of Rs.5000/- was issued against the respondent no. 1. On the basis of the report that accused is lodged in J/C, vide order dated 03.05.2019, his production warrant was issued on the filing of the particulars by the complainant. But complainant failed to submit the particulars regarding accused, as a result of which, production warrant could not be issued. Same thing continued, during the pandemic and thereafter, as per record on 29.10.2021 and 23.04.2022 when impugned order was pronounced, none appeared for the complainant.
10. The Trial Court had made all efforts to seek production of the accused but complainant either did not file appearance or submit the particulars regarding confinement of the accused. The Ld. Trial Court has exercised the discretion in fair and judicious manner.
11. In view of Section 256 Cr.P.C., dismissal of the complaint on account of non-appearance of complaint, amounts to acquittal of the accused and as per Section 378 (4) Cr.P.C., appeal against acquittal in complaint case lies before the Hon'ble High Court. Thereby, I find no substance in this revision petition and same is dismissed.
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12. A copy of this order alongwith Trial Court Record be sent back to the learned Trial Court for information.
13. Revision file be consigned to Record Room.
Digitally signedSANJAY by SANJAY GARG - I GARG - I Date: 2023.03.07 17:02:21 +0530 Announced in the open court (SANJAY GARG - I) today on 7 March, 2023 th Principal District & Sessions Judge East, Karkardooma Courts, Delhi (pm) Crl. (R) 116/2022 Ms. Jyoti Dabral vs. Ashok Anand Maharaj & Ors. Page 5 of 5