Delhi District Court
Sh. Satish Kumar vs Sh.Bharat Singh on 13 March, 2013
1
IN THE COURT OF SHRI S. K. SARVARIA DISTRICT & SESSION JUDGE
NORTH WEST, DISTRICT COURTS ROHINI, DELHI
Crl. R. No. 23A/2012
Sh. Satish Kumar,
S/o Sh. Pradhan Singh,
R/o RZ- 32, Dharampura Colony,
Najafgarh, Delhi. .... Petitioner
VERSUS
Sh.Bharat Singh,
S/o Sh. Amar Singh,
R/o 116, Village & Post Office
Chand Pur, Delhi - 81. ... Respondent
Date of Institution : 20.07.2012
Date when arguments heard : 01.03.2013
Date of pronouncement of Order: 13.03.2013
O R D E R :-
By this revision petition, the petitioner/complainant has requested for setting aside the order dated 11.11.2011 by which the complaint filed by the petitioner under section 138 of the Negotiable Instruments Act was dismissed in default as well as for non prosecution by the learned trial court on account of absence of the complainant and his counsel.
2. I have heard the learned counsel for the petitioner and have gone through the trial court record, revision file and the relevant provisions of law.
3. The revision petition is accompanied by application under Section 5 of the Limitation Act for condonation of delay. The composite Satish Kumar Vs. Bharat Singh 2 arguments on the application as well as revision petition were heard.
4. The impugned order was passed by Ld. ARC cum M.M. on 11.11.2011. The revision petition was filed on 19.07.2012 i.e. beyond prescribed limitation period of 90 days. The contention on behalf of petitioner is that the counsel for petitioner had heart problem and was under treatment at Sir Ganga Ram Hospital and he was advised complete rest as only 25% of his heart was functioning. Thereafter, petitioner engaged another counsel on 02.05.2012 who informed that complaint was dismissed on 11.11.2011. The petitioner was not having knowledge of the date fixed before ld. trial court due to illness of his counsel so delay in filing the appeal should be condoned.
5. In view of the fact that the counsel for the petitioner was suffering from heart problem and in the month of June there was summer vacation and also the fact that the revision petitions/appeals should be preferably decided on the merits instead of technical question of limitation to grant substantial justice to the parties, the delay in filing the revision petition is condoned and application under Section 5 of the Limitation Act is disposed off accordingly.
6. Now I came to main revision petition. Ld. counsel for the petitioner has argued that on 11.11.2011 the petitioner and his counsel could not appear as his earlier counsel had heart problem and was under treatment at Sir Ganga Ram Hospital and he was advised complete rest as only 25% of his heart was functioning. The, petitioner engaged another counsel on 02.05.2012 who informed that complaint was dismissed on 11.11.2011. Therefore, the absence on 11.11.2011 of petitioner and his counsel is not intentional and complaint should be restored. Reliance is placed upon M/s Jindal Pipes Ltd. Vs. M/s Beard Sell Satec Ltd. 2006 (3) Criminal Court Cases 383 (Madras), M/s Plaza Cables Electric Pvt. Ltd. Vs. Kamal Khurana 2007 (4) Criminal Court Cases 383 (Delhi), S. Anand Vs. Satish Kumar Vs. Bharat Singh 3 Casumathi Chandrasekar 2008 (2) Criminal Court Cases 025 (S.C.), Kulwant Singh Vs. Balhar Singh 2007 (1) Criminal Court Cases 459 (P&H), Kumaresan Vs. Girirajan 1999(2) Civil Court Cases 309 (Madras), Umesh Kumar Vs. Moudgil Carpets & Rugs & Ors. 1993 (2) C.C. Cases 318 (P&H) and Ratanlal Gulabchand Gupta Vs. Sahara Sev Gruh Udyog Bhandar 2002 (1) Civil Court Cases 17 (Gujrat).
7. Ld. counsel for the respondent has argued that the application is not maintainable and infact appeal should have been filed before Hon'ble High Court. Reliance is placed upon Ramu Alias Ram Kumar and Ors. Vs. Jagannath 1992 STPL (LE) 16776 SC and Vinay Kumar Vs. State of U.P. 2007 Crl.L.J. 3161.
8. The basic question here is whether the revision lies against the impugned order of learned trial court or the appeal lies? If the appeal lies then it lies before Sessions court or before Hon'ble High Court.
9. It cannot be disputed that the complaint in question was proceeded with as per Summons Trial. Therefore, on account of absence of complainant and counsel for the complainant before learned trial court Section 256 Cr.P.C is attracted.
10. The basic law is that the Court shall not acquit an accused under Section 256(1) of the Code of Criminal Procedure,1973, before issuance of process/summons to accused in Form No. 1 of the Second Schedule of the Code without appointing a day for his appearance in Court. Any order of acquittal passed under Section 256(1) of the Code, before issuance of process/summons to the accused will be clearly illegal and without jurisdiction. {See Bristo Foods Pvt. Ltd v. Hariharan Nair & Anr IV (2007) BC 319 (Ker)}. Therefore, when the summons have been issued in the complaint case for appearance of the accused or on subsequent date Satish Kumar Vs. Bharat Singh 4 when the accused is present the absence of the complainant leads to dismissal of the complaint and acquittal of the accused. In this regard the relevant paras of the decision in Raja S/o. Dr. S.P. Upadhyay v. State of Maharashtra, 1999(3) Civ.C.C. 369 (Nagpur) are worth noting and the same is as under:
"8. Therefore, the only question, which deserves consideration is as to what remedy was available to the complainant against the order passed by the learned Magistrate under section 256(1) of the Criminal Procedure Code, 1973. There is no dispute about the fact that the learned Magistrate has dismissed the complaint under section 256(1) of the Criminal Procedure Code, 1973, as the complainant remained absent and as a consequence of such dismissal, passed an order that the accused is discharged. Obviously, the order of the learned Magistrate discharging the accused was incorrect to the extent that he ought to have acquitted the accused in terms of section 256(1) of the Criminal Procedure Code, 1973. The complainant appears to have been misled by the fact that the Magistrate having discharged the accused, he could avail the remedy of preferring a revision and that is what it appears from the Memo of Revision preferred by the complainant before the Court of Sessions. In the circumstances, the learned Additional Sessions Judge ought to have summarily rejected the Revision Application directing the complainant to prefer an appeal against the order passed by the Magistrate, under section 256(1) of the Criminal Procedure Code, 1973; but the learned Additional Sessions Judge committed an error in entertaining the revision on merits and interfering with the order by the learned Magistrate.
9. It cannot be gain said that merely because the Magistrate committed an error in recording the order of discharge, that would invest the complainant with a right to prefer a revision and he was justified in doing so. As the order itself is very clear that it has been passed under section 256(1) of the Criminal Procedure Code, 1973, it will necessarily have to be construed an order of acquittal under section 256(1) and not that of Satish Kumar Vs. Bharat Singh 5 discharge. There is one more distinction which will have to be kept in mind and that is, that once an order of acquittal under section 256(1) of the Criminal Procedure Code, 1973 is passed, then the complainant is debarred from filing a second complaint on the same facts so long as the order of acquittal is not set aside. Therefore, the only course open to the complainant was to prefer an appeal in the High Court against the said order of the learned Magistrate by special leave of the Court under section 378(5) of the Criminal Procedure Code, 1973."
11. The question arose directly in Kalpana Tyagi Vs. Sneh Lata Sharma 2003 Crl.J 3395 Delhi. In this case in a complaint filed under Section 138 of Negotiable Instruments Act was dismissed on account of the absence of the complainant or his Counsel and accused was acquitted. The question before our Hon'ble High Court was whether revision lies or the appeal against such an order. The following observations were made by our Hon'ble High Court:
"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 challenged his acquittal."
12. In Vinay Kumar Vs. State of U.P. and Anr. 2007 Crl. L.J. 3161 (AP) relied upon by ld. counsel for respondent, following observations were made:
"15. Thus, Section 401(4) Cr.P.C. prohibits maintainability of any revision in case of acquittal recorded in a case instituted upon a complaint as the complainant has got a right to file special Satish Kumar Vs. Bharat Singh 6 leave to appeal before the High Court. The said section interdicts revisional power of High Court as well as of Sessions Court. This is the import of joint reading of Sections 378(4), 397,399(1) and 401(4) Cr.P.C. in conjunction with each other."
"16. Thus, from the discussions made above it is perceptibly clear that against the order dated 5-2-2004 passed by Ld. A.C.J.M. Ist Muzaffarnagar in the complaint case instituted by complainant Sanjay Kumar Dixit respondent no.2 which amounted to acquittal of accused revisionist, respondent No.2 complainant had a right to file a special leave to appeal to this High Court under Section 378(4) Cr.P.C. and since that having not been done no revision was maintainable at his behest before Sessions Judge Muzaffarnagar against the prohibition contained under Section 401(4) Cr.P.C."
13. In the light of above legal position the facts before learned trial court need to be scrutinized to ascertain whether revision or the appeal lies against the impugned order. The learned trial court's record shows that on 06.09.2010 after satisfying itself that a prima facie case under section 138 of the Negotiable Instruments Act, the respondent/accused was summoned by learned trial court. Notice u/S 251 Cr.P.C for offence u/S 138 N.I. Act was given to respondent/accused on 21.03.2011 by learned trial court and he pleaded not guilty and claimed trial. As accused was absent on 18.05.2011, NBWs were directed to be issued against the accused on filing of PF but no PF was filed by the complainant/petitioner despite two opportunities, so cost of Rs.2000/- was imposed upon him to be deposited with DLSA. Cost was also not deposited by the complainant/petitioner. Ld. Trial court has dismissed the complaint for non prosecution and in default vide impugned order dated 11.11.2011. In the light of legal position highlighted by Kalpna Tyagi's case (supra), Bristo Food's case (supra) and Vinay Kumar's case (supra) with the dismissal of the complaint the accused shall be deemed to have been acquitted by the learned trial court. Therefore, appeal and not the revision lies against the impugned order of acquittal.
Satish Kumar Vs. Bharat Singh 7
14. The matter does not end here. The next logical question is whether against the impugned order the appeal lies before Sessions court or before Hon'ble High Court. If it lies before Sessions court then by virtue of provisions of Section 399 (2) read with Section 401 (5) CPC, the revision petition of the petitioner can be converted into the appeal. If it lies before Hon'ble High Court then it cannot be so converted and so is not maintainable before Sessions Court.
15. Section 378 Cr.P.C. deals with appeal against acquittal. A careful perusal of this provision of law shows that after the Cr.P.C. was amended by Amending Act 2005 (25 of 2005) with effect from 23/6/2006 the appeal against judgment of acquittal passed by Magistrate in police cases lies before Sessions Court which is a clear departure from the earlier position prior to 23/6/2006 when the appeal against acquittal in police cases or in private complaint cases used to be filed before Hon'ble High Court. However, it is only half of the story and this legal position after 23/6/2006 is with regard to police cases only. The legal position as to forum in appeal against acquittal in private complaint cases remained unchanged by the said Amending Act 2005. Therefore, as in past, the appeal would lie before Hon'ble High Court against the judgment of acquittal passed by Magistrates in private complaint cases including the complaint cases under the provisions of section 138 of the Negotiable Instruments Act. This legal position is indicated by Sub section (4) of Section 378 Cr.P.C. A harmonious construction of Sub-Section (4) of Sec. 378 Cr.P.C. and proviso of Section 372 Cr.P.C. shows that the word 'Victim' is used in the proviso to Section 372 Cr.P.C. for victims of crime in police cases and not in private complaint cases like the present complaint u/Sec. 138 Negotiable Instruments Act. Hence, appeal should have been filed before Hon'ble High Court.
16. In Ratanlal Gulabchand Gupta's case (supra) Umesh Kumar's case (supra), Kumaresan's case (supra), Kulwant Singh's case Satish Kumar Vs. Bharat Singh 8 (supra), M/s Plaza Cables Electric's case (supra) and M/s Jindal Pipes's case (supra), the appeal/revision petition was filed before Hon'ble High Court and not before Sessions Court, so these authorities do not help the petitioner.
17. In S. Anand's case (supra), the complaint was at the stage of defence evidence so it was held that it cannot be dismissed for non appearance of complainant and if the complainant does not cross examine defence evidence then complainant would do so at his peril and the presence of the complainant at that stage is not necessary, but in the present case, the complaint was not at the stage of defence evidence it was at the stage of appearance of the accused, therefore, S. Anand's case (supra) relied upon by ld. counsel for the petitioner does not apply.
18. In view of the above discussion the appeal against the impugned order of dismissal of the complaint in the default lies before Hon'ble High Court and not before Sessions Court. The revision petition is, therefore, dismissed being not maintainable. The trial court record be returned along with the copy of this order. The order be sent to the server (www.delhidistrictcourts. nic.in). The revision file be consigned to the record room.
Announced in the open court on 13th March 2013 (S.K.SARVARIA) DISTRICT & SESSIONS JUDGE (N/W) DISTRICT COURTS ROHINI, DELHI Satish Kumar Vs. Bharat Singh 9 CR No. 23A/12 Satish Kumar Vs. Bharat Singh 13.03.2012 Present : None.
Vide separate order of even date, the revision petition is dismissed being not maintainable. The trial court record be returned along with the copy of this order. The revision file be consigned to the record room.
(S.K. SARVARIA) DISTRICT & SESSIONS JUDGE (N/W) ROHINI COURTS: DELHI / 13.03.2013 Satish Kumar Vs. Bharat Singh