Delhi District Court
Through Authorized Representative vs Sh.Pradeep Kumar on 21 January, 2023
IN THE COURT OF PRAVEEN KUMAR,
PRINCIPAL DISTRICT & SESSIONS JUDGE:
NORTH-EAST, KARKARDOOMA COURTS, DELHI
CR No.196/22
CNR No. DLNE01-004230-2022
In the matter of:
Shriram Transport Finance Ltd.,
Regd. Office at 14-A,
South Phase, Industrial Estate,
Guindy, Chennai-600032.
Branch Office:
1st Floor, Above Ganga Electronics,
Patel Nagar II, Meerut Road,
Ghaziabad-201102.
Through Authorized Representative:
Sh. Tushar Chandra Mishra. ............ Revisionist
Versus
Sh.Pradeep Kumar
S/o Surender Singh
R/o H. No. 319, Biharipura Part-1,
PS Vijay Nagar, Vijay Nagar by Bass Road,
Near Shiv Mandir, Ghaziabad,
Uttar Pradesh-201009. ...............Respondent
Date of registration of revision: 15.12.2022
Date when revision was received by this Court: 17.12.2022
Date of conclusion of arguments: 21.01.2023
Date of pronouncement of judgment: 21.01.2023
Memo of appearance:
Sh. Dinesh Kumar, Ld. Counsel for the revisionist.
JUDGMENT (ORAL):
1. The present criminal revision has been filed under Section 397 of the Code of Criminal Procedure (hereinafter referred to as Digitally signed by PRAVEEN PRAVEEN KUMAR the 'Cr.P.C') by the revisionist challenging the order dated KUMAR Date:
2023.01.21 15:35:04 +0530 CR No.196/22 Shriram Transport Finance Ltd. Vs. Pradeep Kumar Page 1/6 15.11.2022 passed by the Court of Ms. Nidhi Bala, Ld. Metropolitan Magistrate (Negotiable Instruments Act/Digital Court), North-East, Karkardooma Courts, Delhi whereby its complaint under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the 'N. I. Act') was dismissed for non-prosecution under Section 204 (4) of Cr.P.C. For the sake of convenience, the revisionist would be referred to as 'complainant' and respondent as 'accused' as per their nomenclature before the Trial Court.
BRIEF FACTS:
2. Briefly stated, the complainant had filed a complaint under Section 138 of the N. I. Act against the accused as cheque dated 12.02.2021 for a sum of Rs.4,20,000/-, issued by the accused, returned dishonoured with remarks 'Insufficient Funds'. The legal notice dated 20.03.2021 also did not yield any result and, accordingly, complaint was filed by the complainant before the Trial Court.
3. Trial Court record reveals that on 02.06.2022 bailable warrants were directed to be issued against the accused on filing of PF and the matter was fixed for 27.08.2022. On 27.08.2022, last opportunity was granted to complainant for filing of PF and matter was fixed for 15.11.2022. Since the complainant did not file PF within the stipulated period, Trial Court on 15.11.2022 dismissed the complaint for non-prosecution under Section 204 (4) of Cr.P.C.. Trial Court record reveals that accused never appeared before the Trial Court.
FINDINGS OF THE TRIAL COURT:
4. Trial Court dismissed the complaint on 15.11.2022 for non Digitally prosecution under Section 204 (4) Cr.P.C holding that signed by PRAVEEN PRAVEEN KUMAR complainant failed to file PF for service of accused for the last KUMAR Date:
2023.01.21 15:35:16 +0530 CR No.196/22 Shriram Transport Finance Ltd. Vs. Pradeep Kumar Page 2/6 two dates. The said order dated 15.11.2022 is under challenge before this Court and the same is reproduced herein below:-
"15.11.2022 (VC Proceedings through CISCO Webex) Present: AR of the complainant.
Reader-cum-Ahlmad of this court reported that process could not be issued against the accused as no PF was filed by the complainant.
Keeping in view Section 204 (4) Cr.P.C and also considering the fact that complainant is not filing the PF for service of accused for the last two dates, this court is of the considerate opinion that the present complaint is liable to be dismissed observing the aforementioned facts. Therefore, the present complaint case is disposed of as "dismissed" for non prosecution under Section 204 (4) of Cr.P.C.
(NIDHI BALA) MM/NI Act/Digital Court/ North-East/KKD/15.11.2022"
ARGUMENTS:
5. I have heard Sh. Dinesh Kumar, Ld. counsel for the complainant and perused the impugned order as well as the Trial Court record. It is contended by Ld. counsel for the complainant that in compliance of the direction of Trial Court vide order dated 02.06.2022, complainant had filed PF on 06.07.2022 for service of respondent. It is contended that number of times PF was filed for service of respondent. It is further contended that there was never any malafide intention on the part of the complainant. It is contended that substantive rights of the complainant would be seriously affected in case the complaint is not restored. It is Digitally prayed that the impugned order be set aside and the complaint signed by PRAVEEN PRAVEEN KUMAR KUMAR Date:
2023.01.21 15:35:27 +0530 CR No.196/22 Shriram Transport Finance Ltd. Vs. Pradeep Kumar Page 3/6 may be restored to its original number and position. LAW AND DISCUSSION:
6. This court is conscious of the fact that as per Section 401(2) of Cr.P.C, the revisional power should not be exercised without notice to adversary when an order prejudicial to the accused is passed. However, in the present matter, the accused never appeared before the Trial Court. The order dismissing the complaint in default and for non-prosecution does not touch upon the factual or legal merits of the case. It only indicates about the conduct of the complainant in such proceedings and, therefore, in such type of revision petitions, there is no legal requirement of issuing any formal notice to the accused as there was never any deliberation about merits or demerits of the averments made in the complaint. Though not referred to or relied upon, for taking this view I am supported with the judgement of our Hon'ble Delhi High Court reported as Hindustan Domestic Oil and Gas Company Versus State, Criminal MC no.1737/2011, decided on 03.08.2012, wherein it was held as under:
"The order dismissing the complaint for default or non prosecution does not touch upon the factual or legal merits of the complaint. The said order is a reflection on or about the conduct of the complainant in the proceedings before the court and the opinion formed by the court about the said conduct. Such orders if they do no reflect and take into consideration the merits of the case or the complaint will not require notice to the opposite side when examined in a revision petition. Such orders are not prejudicial to the other side as they do not reflect and take into consideration merits and demerits of the allegations. When a revision petition is filed against an order Digitally dismissing a complaint for non prosecution or signed by PRAVEEN default and the same is allowed, it is not an PRAVEEN KUMAR KUMAR Date:
2023.01.21 15:35:41 +0530 CR No.196/22 Shriram Transport Finance Ltd. Vs. Pradeep Kumar Page 4/6 order that causes prejudice to the opposite side, if there is no application of mind or reflection on merits whatsoever. This distinction and aspect has to be kept in mind."
7. Though not referred to or relied upon, reference is invited to the judgment titled as Vijay Kumar Versus Bachnu, 1987 SCC Online P&H 627.
8. It is pertinent to mention here that the dismissal of complaint is not subsequent to the appearance of the accused. Had the complaint been dismissed under section 256 Cr.P.C, the position would have been totally different as in such scenario, the dismissal of the complaint would have the effect of acquittal and, therefore, an appeal would have been maintainable. However, in the present case as cognizance was not taken and accused never put in appearance before the Trial Court, there was no question of his being discharged. Perusal of Trial Court record reveals that no PF was filed by the complainant in compliance of order dated 27.08.2022 and last opportunity was given to the complainant for filing PF. However, the said direction was also not complied with by the complainant. Trial Court was justified in dismissing the complaint as complainant ought to have complied with the direction of Trial Court qua filing of PF for issuance of bailable warrants against accused. Even though there is no illegality or impropriety in the impugned order of dismissal of the complaint, still, in the interest of the justice, I am of the view that the complainant should be given an opportunity to pursue its complaint.
CONCLUSION:
9. In view of the above discussion, the present revision Digitally signed by PRAVEEN petition is hereby allowed. Order dated 15.11.2022 passed by the PRAVEEN KUMAR KUMAR Date:
2023.01.21 15:35:52 +0530 CR No.196/22 Shriram Transport Finance Ltd. Vs. Pradeep Kumar Page 5/6 Trial Court is set aside and the complaint is restored to its original number and position. The revisionist is directed to appear before Trial Court on 25.01.2023. It is expected that there would be no further non-compliance of the directions of the Trial Court from the side of the complainant. Trial Court record be sent back along with the copy of this judgment. Revision file be consigned to the Record Room.
ANNOUNCED IN THE OPEN COURT TODAY i.e. 21 st JANUARY, 2023 Digitally signed PRAVEEN by PRAVEEN KUMAR KUMAR Date: 2023.01.21 15:36:01 +0530 (PRAVEEN KUMAR) PRINCIPAL DISTRICT AND SESSIONS JUDGE NORTH EAST DISTRICT KARKARDOOMA COURTS CR No.196/22 Shriram Transport Finance Ltd. Vs. Pradeep Kumar Page 6/6