Delhi District Court
Indiabulls Financial Services Ltd vs Rabi Das on 13 April, 2012
IN THE COURT OF SH.SURESH CHAND RAJAN
ADDITIONAL SESSIONS JUDGE/SPECIAL JUDGE(NDPS)
DWARKA COURTS, NEW DELHI
Crl. Revision No.61/12
Indiabulls Financial Services Ltd.
....Revisionist
Vs.
Rabi Das
...... Respondent
Date of Institution : 17.03.2012
Reserved for order on : 09.04.2012
Order announced on: 13.04.2012
ORDER
The present revision has been preferred for setting aside the order dated 24.12.2011 passed by Sh.Babru Bhan, Ld. MM in Complaint Case whereby the Ld. MM had dismissed the complaint for nonprosecution.
2. Briefly stated the facts for giving rise to this revision is that the revisionist had filed complaint case against the respondent u/s 138 NI Act. on the averments that the respondent/accused had Indiabulls Financial Services Ltd. Vs Rabi Das C.R.No.61/12 Page No. 1 of 7 taken loan which he did not pay and thereafter issued cheque which on presentation was returned unpaid by the banker of the respondent. The complaint was received and presummoning evidence was led by way of affidavit and after hearing the arguments accused was summoned. Thereafter on 24.12.2011, the complaint was dismissed by the Ld.MM for non prosecution u/s 204(4) Cr.PC. Feeling aggrieved by the said order dated 24.12.2011, the revisionist has preferred this present revision for setting aside the said order.
3. This appeal was received by this court on 17.03.2012. Trial court record was summoned which was received on 27.03.2012 and thereafter on 09.04.2012, I have heard the arguments from the Ld. Counsel for the revisionist.
4. During the course of arguments, it has been submitted by the Ld. Counsel for the revisionist that the Ld. Trial court has dismissed the complaint as the PF was not filed. It has been submitted that he was under the impression that PF has duly been filed by the clerk of the counsel and it has been submitted that the clerk of the counsel had left the job without informing this fact of non filing the PF. It has been submitted that the mistake on the part of the counsel was neither deliberate nor intentional but due to the said circumstances. Ld. Counsel submitted that the case is at the Indiabulls Financial Services Ltd. Vs Rabi Das C.R.No.61/12 Page No. 2 of 7 initial stage and the complaint may kindly be restored and order passed by the Ld.MM dated 24.12.2011 may kindly be set aside.
5. In consideration of the arguments advanced by the Ld. Counsel for the appellant, I have also perused the trial court file and the orders passed by the Ld. MM. The complaint case was received by the court below on 23.04.08 and on 09.05.2008 presummoning evidence was led by way of affidavit and accused was summoned. On 18.10.2008, the order passed by the Ld.MM is appended below: 18.10.2008 Present: Counsel for complainant with AR Accused Absent despite service Issue BW against the accused in the sum of Rs.3000/ on filing of PF. Be put up on 04.08.2009.
MM/KKD/Delhi 04.08.09 Present: A/R for the complainant in person with Counsel PF not filed.
Issue fresh process to the accused as per last orders on filing of PF for 11.10.2010.
MM/KKD/Delhi On 26.11.2010 and 26.02.2011 the dates were given as Indiabulls Financial Services Ltd. Vs Rabi Das C.R.No.61/12 Page No. 3 of 7 the petition regarding territorial jurisdiction was pending in Hon'ble Supreme Court of India. Another order dated 08.08.2011 reads as under: 08.08.2011 Present: Sh Anil Sharma, Ld. Counsel for the complainant Accused in person with counsel Perusal of the reveals that the case is at the stage of execution of BW against the accused.
Issue fresh BW for a sum of Rs.5000/ against the accused on filing of PF to be executed through SSP concerned in whose jurisdiction the accused resides returnable for 20.10.2011. Steps be taken within 15 days.
MM/KKD/Delhi
6. On 20.10.2011 PF was not filed and cost of Rs.200/ was imposed upon complainant and fresh BW were issued. Thereafter on 24.12.2011 the present complaint was dismissed by observing that cost of Rs.200/ not paid and steps has not been taken to comply the order. In one order sheet dated 08.08.2011 the accused had been stated to be present in person with counsel while fresh BW for a sum of Rs.5000/ has also been issued against the accused. In my opinion Ld.MM has committed error while passing the said order or it was passed in stereotype. Further the Bailable Warrants were issued on Indiabulls Financial Services Ltd. Vs Rabi Das C.R.No.61/12 Page No. 4 of 7 filing of PF which in my opinion is wrong on the face of it. However, be that as it may, the submissions of the ld. Counsel is that accused has yet not appeared in this case and the case is at the initial stage. Perusal of the order of Ld. MM dated 24.12.2011 shows that it was dismissed due to non filing of PF. Section 204 (4) reads that when by any law for the time being in force any processfees or other fees are payable, no process shall be issued untill the fees are paid and, if such fees are not paid within a reasonable time, the Magistrate may dismiss the complaint. However, in this case bailable warrants were issued against the accused and therefore it is manifest that appearance of accused could not be secured by sending summons. It is further abundantly clear the summons to accused had already been issued in this case.
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 presummoning stage does not result in acquiital of an accused in terms of section 256 of the Code. If an accused has not Indiabulls Financial Services Ltd. Vs Rabi Das C.R.No.61/12 Page No. 5 of 7 been summoned even there can be no acquittal in his favour. However, once the accused has been summoned and the complainant does not appear on the date fixed, 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 attendance 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 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 favour of dismissal of the complaint the consequences 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 Indiabulls Financial Services Ltd. Vs Rabi Das C.R.No.61/12 Page No. 6 of 7 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 view of my above discussions I am of the considered opinion that the impugned order passed by the Ld.MM on 24.12.2011, which was passed after summoning of accused, section 256 of Code had come into play and dismissal of complaint resulted in acquittal of respondent against which only appeal could be filed. Thus the revision filed by the petitioner/revisionist is not maintainable and the same is hereby dismissed.
10. Trial court files be sent back to the court concerned with the copy of this order and revision file be consigned to record room. Announced in the Open Court on 13.04.2012.
(SURESH CHAND RAJAN) ADDL.SESSIONS JUDGE/ SPECIAL JUDGE(NDPS) NEW DELHI Indiabulls Financial Services Ltd. Vs Rabi Das C.R.No.61/12 Page No. 7 of 7