Delhi District Court
Puspa Sharma vs Lakshmi Vatika Ltd on 16 November, 2011
1
IN THE COURT OF SHRI S. K. SARVARIA DISTRICT JUDGE
INCHARGE (N/W), ADDL SESSIONS JUDGE
DISTRICT COURTS ROHINI, DELHI
Crl. A. No. 48/2011
Puspa Sharma
W/o Sh. K.K. Sharma
R/o Flat No. 1235, Sector-37,
Noida. .... Appellant
VERSUS
1. Lakshmi Vatika Ltd.
1007-1012, 10th Floor, Narain Manzil
23, Barakhamba Road Connaught Place
New Delhi.
2. Mr. Devender Aggarwal
Director
M/s Lakshmi Vatika Ltd.
1007-1012, 10th Floor, Narain Manzil
23, Barakhamba Road Connaught Place
New Delhi .... Respondents
J U D G M E N T :-
1. By this appeal the appellant/complainant has requested for setting aside the order dated 18.03.2011 by which the complaint filed by the appellant under section 138 of the Negotiable Instruments Act was dismissed in default by the learned trial court on account of absence of the complainant or his counsel. The delay in filing the appeal is condoned by my order dated 21.10.2011 by allowing the application of appellant for that purpose.
Initially the revision petition was filed by the petitioner/appellant which was converted into appeal u/Sec. 399 (2) r/w Se. 401 (5) Cr.P.C vide my order dated 20.10.2011.
2. The contention on behalf of the appellant is that he was advised Pushpa Sharma Vs Lakshmi Vatika 2 by his counsel that his appearance was not required before the court and that he would manage himself the court proceedings, therefore, appellant could not present in the court due to bonafide believe on the words of his counsel. He further stated that as he wanted to know the court proceedings, he reached the court on 11.07.2011 and came to know that the complaint was already dismissed in default. He thereafter, immediately engaged the counsel and applied for certified copies of the order. It is further submitted that non appearance of the appellant was neither international nor willful, therefore the appeal should be allowed and the complaint should be restored to the original number.
3. I have heard the learned counsel for the appellant and have gone through the trial court record, appeal file and the relevant provisions of law.
It cannot be disputed that the complaint in question pertained to a Summons Case which entails Summon Trial. Therefore, on account of absence of complaint and counsel for the complainant before learned trial court Section 256 Cr.P.C is attracted.
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 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 Pushpa Sharma Vs Lakshmi Vatika 3 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 Pushpa Sharma Vs Lakshmi Vatika 4 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 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."
4. 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 Pushpa Sharma Vs Lakshmi Vatika 5 challenged his acquittal."
5. In the light of above legal position the facts before learned trial court needs to be scrutinized to ascertain whether revision appeal lies against the impugned order. The learned trial court's record shows that on 03.07.2008 after satisfying itself that a prima facie case under section 138 of the Negotiable Instruments Act, is disclosed the respondent/accused was summoned by learned trial court. Thereafter the summons were issued. On 18.07.2008 fresh summons were directed to be issued against the accused who remained unserved from the initial order of summoning and throughout till the impugned order is passed, on 18.03.2011. In the light of legal position highlighted by Kalpna Tyagi's case (supra) and Bristo Food's case (supra) with the dismissal of the complainant 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.
6. 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. 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 Pushpa Sharma Vs Lakshmi Vatika 6 indicated by Sub-Section (4) of Section 378 Cr.P.C.
7. Ld. counsel for appellant has argued that as per proviso to Sec. 372 Cr.P.C appeal lies to Sessions Court against impugned order. But the said proviso inserted by Act n. 5 of 2009 w.e.f. 31.12.2009 in Sec. 372 Cr. P.C. is applicable to the victims in a police case. For appeal against acquittal in a private complaint case like the present one, Sub-Section 4 of Sec. 378 is directly applicable and appeal shall lie to the Hon'ble High Court and not to the Sessions Court against the order of deemed acquittal of the accused in a complaint case filed u/Sec. 138 N.I. Act which is dismissed in default after order of issuance of process of appearance against the accused.
8. 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 appeal is, therefore, dismissed being not maintainable. The trial court record be returned along with the copy of this judgment. The judgment in appeal be sent to the server (www.delhidistrictcourts.nic.in). The appeal file be consigned to the record room.
Announced in the open court on 16th day of November 2011 (S.K.SARVARIA) DISTRICT JUDGE & INCHARGE (N/W) ADDL. SESSIONS JUDGE DISTRICT COURTS ROHINI, DELHI Pushpa Sharma Vs Lakshmi Vatika