Delhi District Court
Deepika Rathore vs Gaurav Chauhan on 9 April, 2024
IN THE COURT OF SH. KUMAR RAJAT,
ADDL. SESSIONS JUDGE-07, SHAHDARA DISTRICT,
KARKARDOOMA COURTS, DELHI
In the matter of :
CNR No. DLSH01-006269-2023
Cr. Rev No. 298/2023
Deepika Rathore Vs. Gaurav Chauhan
Deepika Rathore
W/o Sh. Yogesh Kumar,
R/o 31-C, Pocket-B,
DDA Flats, West Gorakh Park,
Shahdara, Delhi-110032
.......... Complainant
Vs.
Gaurav Chauhan
S/o Sh. Bhan Singh Chauhan
R/o C-298, Surajmal Vihar,
Delhi-110032
Also At,
H. No. 836, Road No. 12,
Gali No. 4, Jhandapur,
Sahibabad, Ghaziabad, UP
.......... Respondent
Date of Institution of case 12.10.2023
Date of case reserved for Judgment 06.04.2024
Judgment Pronounced on 09.04.2024
JUDGMENT
1. The present criminal revision petition has been filed against the order dt. 23.09.2023 and 28.07.2023 passed by Sh. Anmol Nohria, Ld. MM, KKD. Courts, Delhi.
CR Rev No. 298/2023 Deepika Rathore Vs. Gaurav Chauhan Page 1 of 62. Ld. counsel for the revisionist submits that the present revision petition was pending before the court of Sh. Anmol Nohria, Ld. MM, KKD Courts, Delhi in case titled as Deepika Rathore Vs. Gaurav Chauhan vide case No. 1270/2021, PS Farsh Bazar, Delhi and the same was dismissed in default on 23.09.2023 on the ground of non-appearance of the revisionist. Ld. Counsel for the revisionist inspected the judicial file of this case and found that on 28.07.2023, the counsel was present with revisionist through VC, but the reader of the said Court has marked absent of the revisionist along with her counsel and marked the presence of the opposite party along with his counsel namely Himanshu Vashishta.
3. It is also submitted that it is mentioned in the order- sheet dt. 23.09.2023 that despite service of notice to the complainant, none has appeared and no notice was found which was sent to the revisionist and the said order was arbitrary in nature and no court notice was issued to the revisionist. On 23.09.2023, the counsel for revisionist was admitted in Tulsi Hospital, Durgapuri, Delhi from 05.09.2023 to 10.09.2023 and doctor had advised him bed rest and revisionist was pregnant due to which she could not appear. It is prayed that complaint case be restored in original number.
4. It is also argued by the Ld. Counsel for respondent that Ld. Trial Court had passed a judicially correct order after taking into account the circumstances and the facts that complainant/revisionist had defaulted in her appearance before the court and so as her counsel and accused was acquitted. Thus, the present revision is not maintainable as the appeal has to be CR Rev No. 298/2023 Deepika Rathore Vs. Gaurav Chauhan Page 2 of 6 filed before the Hon'ble High Court u/s 378 Cr.PC and Special Leave of the High Court has to be taken u/s 378 (4) Cr.PC and Ld. Counsel for respondent has relied upon judgment of Sessions Court in Krishan Kumar Vs. Dr. Hans Kumar Jain.
5. The present revision petition has been filed against the orders dt. 28.07.2023 and 23.09.2023. The complaint case was filed by the revisionist u/s 138 NI Act for a cheque in the sum of Rs. 5,00,000/- drawn on Syndicate Bank, which was dishonoured for the reason "Fund Insufficient". The notice was framed u/s 251 Cr.PC on 14.02.2023 and the accused was granted permission to cross-examine the complainant and the matter was fixed for recording of evidence and later on 29.04.2023, none has appeared on behalf of the complainant for the whole day and matter was adjourned to 28.07.2023. On the next day i.e. 28.07.2023, again none appeared on behalf of complainant and matter was adjourned to 23.09.2023. On 23.09.2023, again, none has appeared on behalf of the complainant and then, vide order dt. 23.09.2023, the complaint case was dismissed in default and accused was acquitted as per the provision u/s 256 Cr.PC.
6. Ld. Counsel for revisionist has failed to show any proof that he or revisionist had appeared through VC on 28.07.2023 and Ld. Counsel for respondent submits that they had not appeared. Ld. Counsel was discharged on 10.09.2023 after feeling better and there is nothing in the medical documents that he remained on bed rest till 23.09.2023 on the instructions of the doctor.
7. The present case which is challenged by this revision, is a complaint case and accused is acquitted by the Ld. CR Rev No. 298/2023 Deepika Rathore Vs. Gaurav Chauhan Page 3 of 6 Trial Court.
Section 378(4) Cr.PC says, If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court.
Section 378 (4) Cr.PC provides that the complainant may present an appeal to the High Court when the case is instituted on a complaint and accused is acquitted by the Trial Court and he has to take the Special Leave of Hon'ble High Court before the admission of appeal.
8. The present case is instituted on a complaint u/s 138 NI Act and accused was acquitted by the Ld. Trial Court by resorting to provision of section 256 Cr.PC.
Section 256 Cr.PC, Non-appearance or death of complainant.-
1) If the summons has been issued on complaint, and 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, the Magistrate shall, notwithstanding anything herein before contained, acquit the accused, unless for some reason he thinks it proper to adjourn the hearing of the case to some other day:
Provided that where the complainant is represented by a pleader or by the officer conducting the prosecution or where the Magistrate is of opinion that the personal CR Rev No. 298/2023 Deepika Rathore Vs. Gaurav Chauhan Page 4 of 6 attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case.
(2) The provisions of Sub-section (1) shall, so far as may be, apply also to cases where the non-appearance of the complainant is due to his death.
9. In V K Bhatt Vs. G Ravi Kishore, 2016 (13) SCC 243, Hon'ble Supreme Court observed that:-
"7. The Ld. Counsel duly took us to sections 256/378/397(3)/399/401(4) of CPC and submitted that in accordance with Section 256, if the summons has been issued on complaint, the court has power to dismiss the said complaint when a complainant does not appear before the court to pursue the complaint or for any other reason, and in such a case, the Magistrate shall acquit the accused. Therefore, in the instant case, the dismissal of the complaint tantamounts to acquittal of the appellant."
10. Similar legal proposition has been laid down by the Hon'ble High Court in case titled as Ravi Sharma Vs. State (NCT) of Delhi, 2009 SCC Online Del 2356 that where the complainant was absent and complainant dismissed in default u/s 256 Cr.PC that results into statutory acquittal of an accused and appeal is maintainable in such case with the leave of the Hon'ble High court as envisaged u/s 378(4) Cr.PC.
11. Thus, there is legal bar to entertain the present revision petition as the same is not maintainable due to specific bar under section 378 (4) Cr.PC. During the course of the arguments, Ld. Counsel had stated that he would take proper recourse before the Hon'ble High Court.
CR Rev No. 298/2023 Deepika Rathore Vs. Gaurav Chauhan Page 5 of 612. Considering the same, the present revision petition, being devoid of merits, is accordingly dismissed.
TCR be sent back to the Ld. Trial Court.
File be consigned to record room after due compliance.
(Kumar Rajat) ASJ-07/SHD/KKD Courts/Delhi 09.04.2024 CR Rev No. 298/2023 Deepika Rathore Vs. Gaurav Chauhan Page 6 of 6