Delhi District Court
Rajiv vs . State on 29 November, 2011
1
IN THE COURT OF SHRI SURINDER S. RATHI:ASJ:02:
CENTRAL: ROOM NO.32:TIS HAZARI COURTS :DELHI
ID NO:02401R055152011
CR NO:111/2011
RAJIV vs. STATE
U/s 138 NI ACT
IN THE MATTER OF
Rajiv S/o Late Sh. S.C.Goel
R/o 53, B Block EA, LIG Flats
Udyog Vihar, Sector 82,
Noida UP. .......Appellant/accused
Vs.
The State ......Respondent
Date of Institution : 28.11.2011 Date of final hearing : 29.11.2011 Date of order : 29.11.2011
CRL.REVISION AGAINST THE JUDGMENT DATED 2.11.2011 ORDER ON REVISION
1. This revision is preferred by accused against order of Ld. Magistrate dated 2.11.11 whereby cost of Rs.10,000/ is imposed upon the revisionist / accused on account of his failure to cross examine the complainant despite opportunity.
Page 1 /4 of order on revision Rajive Vs. State dt 29.11.2011 2
2. I have heard argument of Ld. Counsel Sh. N.A.Tyagi advocate for revisionist and I have also carefully perused the entire Trial Court Record as well as the revision.
3. Brief background of the matter is that complaint was preferred by one Sh. Ram Singh U/s 138 NI Act against the revisionist / accused qua dishonour of cheque of Rs.40,000/ drawn in his favour by revisionist. Revisionist was summoned as accused.
4. He was granted opportunity to cross examine the complainant U/s 145 (2) NI Act. On the date fixed for cross examination of complainant who is a Sr. citizen of 65 yrs of age, neither the accused appeared nor his counsel & rather a medical certificate was sent through brother of accused. Ld. Magistrate was considerate enough and the matter was adjourned for 2.11.2011 for cross examination of complainant. Even on this date neither the accused appeared nor his counsel and yet another medical certificate was sent through Ld. proxy counsel for the Ld. Counsel for revisionist / accused. In this backdrop Ld. MM was constrained to impose a cost of Rs.10,000/ owing to this conduct of the accused / revisionist and impugned order dated 2.11.2011 was passed.
Page 2 /4 of order on revision Rajive Vs. State dt 29.11.2011 3
5. As far as maintainability of this revision is concerned, in my considered view the same is not maintainable in the form presented in so far as the complainant has not at all been impleaded as respondent. Interestingly revision has been filed against the State alone. It goes without saying that in 138 Negotiable Instrument Act matters, State has absolutely no concern with it. In the absence of impleadment of complainant , this revision deserves to be dismissed. Moreso, when Ld. Counsel concedes that non impleadment of complaint as respondent was a conscious decision .
6. Record reveals that on both the dates i.e. 27.7.2011 and 2.11.2011 Ld. Regular Counsel for the accused did not appear . It goes without saying that in case accused is constrained and is unable to appear for any reason, it is not necessary that the date of hearing on the day shall be rendered ineffective. Had Ld. defence Counsel desired, he could have himself cross examined the witness. As rightly pointed out by Ld. MM that the idea of furnishing of repeated medical certificate was only to stall or delay the trial in order to harass complainant.
7. As such revisionist is not entitled to any relief as prayed for. Although cost imposed appears to be slightly on the higher side , but on account of non Page 3 /4 of order on revision Rajive Vs. State dt 29.11.2011 4 maintainability of this re vision it does not warrant any interfere by the Court in the manner sought. Revision is accordingly dismissed. Copy of order be sent to the complainant and copy of this order be sent to Ld. Concerned Court . Revision file be consigned to RR.
ANNOUNCED AND DICTATED IN OPEN COURT ON : 29.11.2011 (SURINDER S. RATHI) Addl. Sessions Judge02 Central : Delhi Page 4 /4 of order on revision Rajive Vs. State dt 29.11.2011