Delhi District Court
Cr No. 77/13. M/S Sahaj Infotech vs . Abhitosh Asthana & Others. on 15 April, 2014
CR No. 77/13. M/s Sahaj Infotech Vs. Abhitosh Asthana & Others.
IN THE COURT OF SH. ASHUTOSH KUMAR :
ADDL. SESSIONS JUDGE3 : DWARKA COURTS : DELHI.
In the matter of:
Criminal Revision No. 77/2013.
M/s Sahaj Infotech,
Registered Office
E16, Mahavir Enclave,
New Delhi,
Through its partner
Surender Kumar. ... Revisionist.
Vs.
1. Abhitosh Asthana,
S/o Ram Chander Asthana,
C/o Triloki Nath Asthana,
House No. S8/5, 4A,
Gol Ghar, Kachari,
Varanasi, UP.
2. Ravitosh Asthana,
S/o Ram Chander Asthana,
C/o Triloki Nath Asthana,
House No. S8/5, 4A,
Gol Ghar, Kachari,
Varanasi, UP.
3. Madan Singh Chauhan,
C/o Anand Lal Chauhan,
R/o C73, Shri Nagar Colony,
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CR No. 77/13. M/s Sahaj Infotech Vs. Abhitosh Asthana & Others.
Pahariya, Varanasi, UP.
4. Prashant Pathak,
C/o O.P. Pathaka,
House No. 4, Kashi Enclave Colony,
Pahariya, Varanasi, UP.
5. Office Address:
BPO One Technologies,
Gurunanak Complex,
3, Kamla Nagar, Sigra,
Varanasi221002,
FAX915422227037. ... Respondents.
Date of Institution. : 11.4.2013.
Arguments Advanced On. : 15.4.2014.
Date of Order. : 15.4.2014.
15.4.2014.
Present: Sh. Pramod Sinha, ld. counsel for revisionist
complainant.
None for respondents no. 3 and 4, although, they have already been deemed to be served vide order dated 31.10.2013 pursuant to refusal of summons. Heard. Perused.
Ld. counsel for revisionist has placed on record a copy of Hindi daily newspaper "Rashtria Sahara" dated 22.3.2014 published from Varanasi, to state at bar that the Page No. 2. Contd... ... ...
CR No. 77/13. M/s Sahaj Infotech Vs. Abhitosh Asthana & Others. respondents no. 1, 2 and 5 have been served by publication, in terms of previous order, at their new addresses and has further stated that they have already been served by similar publication dated 12.2.2014 at their previous addresses for the last date of hearing. He has accordingly prayed that the said respondents may be deemed to be served and since none has appeared on behalf of any of the said respondents, despite repeated calls, therefore, the matter may be proceeded further on merits. Ordered accordingly.
Arguments on the present criminal revision petition addressed by the ld. counsel for revisionist. Since none has appeared on behalf of the respondents, despite repeated calls and inspite of their deemed service, therefore, opportunity to them for arguments on revision petition, is closed.
Perused the entire record including TCR carefully.
:: ORDER ::
1. The challenge in the present criminal revision petition u/s 397 CrPC filed by the revisionist is to the impugned order dated 13.12.2012 of Sh. Sudhir Kr. Sirohi, ld. MM, Dwarka Courts, Delhi, in complaint case no. 1220/1/05, titled as "M/s Sahaj Infotech Vs. Abhitosh Asthana & Others", u/s Page No. 3. Contd... ... ...
CR No. 77/13. M/s Sahaj Infotech Vs. Abhitosh Asthana & Others.
138 NI Act, whereby the ld. Trial Court had dismissed the original complaint filed by the complainant (revisionist herein) for nonprosecution and ordered the file to be consigned to record room after due compliance as per rules.
2. On the maintainability of the present revision petition before this Court, ld. counsel for revisionist has submitted that the said dismissal of complaint by the ld. Trial Court was u/s 204 (4) CrPC due to nonprosecution and that the complaint was not dismissed in default as per Section 256 CrPC and hence, the revision petition against the impugned order is maintainable before this Court.
3. The impugned order of the ld. Trial Court is reproduced below: "CC No. 1220/1/05 13.12.2012 At 10.00 am Present: None for complainant.
Process u/s 82 CrPC against the Page No. 4. Contd... ... ...
CR No. 77/13. M/s Sahaj Infotech Vs. Abhitosh Asthana & Others.
accused received back executed.
Be awaited till 12.30 pm. (Sudhir Kr. Sirohi) MM02/Dwarka Court, New Delhi, 13.12.2012 At 12.30 pm. Present: None.
Process u/s 82 CrPC against the accused received back executed.
Be awaited till 2.30 pm. (Sudhir Kr. Sirohi) MM02/Dwarka Court, New Delhi, 13.12.2012 At 2.30 pm. Present: None.
Process u/s 82 CrPC against the accused received back executed.
It seems that complainant is not interested in pursuing the matter diligently. Hence, the present matter is dismissed for non prosecution.
File be consigned to record room after due compliance as per rules.
(Sudhir Kr. Sirohi) MM02/Dwarka Court, New Delhi, 13.12.2012"
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4. Perusal of the records reveals that originally 5 accused persons were named in the original complaint and out of them accused no. 1 to 4 were partners and the accused no. 5 was partnership concern and they have been arrayed as respondents herein accordingly in this revision petition also. Vide order dated 27.4.2009, the ld. Trial Court deemed the accused no. 2 to 4 (respondents no. 2 to 4 herein) as served since no envelope or AD of summons issued to them through registered post, were received back, but the receipts of registered AD were filed on record. Thereafter, subsequently the processes u/s 82 CrPC were issued against the said accused persons till passing of the impugned order by the ld. Trial Court. However, there is no formal order sheet of the ld. Trial Court regarding service of accused no. 1 to 5.
5. Since the original accused no. 2 to 4 (respondents no. 2 to 4 herein) were served and subsequently warrants were issued against them and later on process u/s 82 CrPC against them were executed, therefore, it cannot be said that the dismissal of the complaint vide impugned order by the ld. Trial Court was u/s 204 (4) CrPC for nonfiling Page No. 6. Contd... ... ...
CR No. 77/13. M/s Sahaj Infotech Vs. Abhitosh Asthana & Others.
of process fee or any other fee, rather it was dismissal of complaint for nonappearance of the complainant (revisionist herein) as per Section 256 CrPC. I find no force in the argument of the ld. counsel for revisionist that the ld. Trial Court had not formally acquitted the accused persons and, therefore, the said dismissal was not u/s 256 CrPC. Once the ld. Trial Court had dismissed the complaint after deemed service of the original accused no. 2 to 4 due to nonappearance of the complainant, the said dismissal was u/s 256 CrPC and the same resulted into acquittal of the accused persons and nonmentioning of formal order of acquittal of accused persons, by the ld. Trial Court, is of no significance. Further, mere mentioning of the words dismissal for nonprosecution by the ld. Trial Court would not make the same u/s 204 (4) CrPC as firstly complainant was not supposed to take any steps for further proceedings and secondly the accused no. 2 to 4 were already deemed to be served and hence the said dismissal was due to nonappearance of complainant as per Section 256 CrPC resulting into acquittal of accused persons.
6. Further, in the case titled as "H.P. Agro Industries Page No. 7. Contd... ... ...
CR No. 77/13. M/s Sahaj Infotech Vs. Abhitosh Asthana & Others.
Corporation Ltd. Vs. M.P.S. Chawla", (1997) 2 Crimes 591 (H&P), it was held that there is no denying that the dismissal of the complaint in default u/s 256 entails the acquittal of the accused. Once an accused has been acquitted of the offence, the law provides a remedy by way of an appeal against the order of acquittal u/s 378 (4) CrPC.
7. Also, in the case titled as "Subhash Chand Vs. State (Delhi Administration)", 2013 (1) JCC 338, the Hon'ble Supreme Court, in para nos. 17 and 21, held as under: "17. SubSection (4) of Section 378 makes provision for appeal against an order of acquittal passed in case instituted upon complaint. It states that in such case if the complainant makes an application to the High Court and the High Court grants special leave to appeal, the complainant may present such an appeal to the high Court. This subsection speaks of 'special leave' as against subsection (3) relating to other appeals which speaks of leave'. Thus, complainant's appeal against an order of acquittal is a category by itself. The complainant could be a private person or a public servant. This is evident from sub section (5) which refers to application filed for 'special leave' by the complainant. It grants six Page No. 8. Contd... ... ...
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months period of limitation to a complainant who is a public servant and sixty days in every other case for filing application. Sub Section (6) is important. It states that if in any case complainant's application for 'special leave' under SubSection (4) is refused no appeal from order of acquittal shall lie under subsection (1) or under subsection (2). Thus, if 'special leave' is not granted to the complainant to appeal against an order of acquittal the matter must end there. Neither the District Magistrate not the State Government can appeal against that order of acquittal. This idea appears to be to accord quietus to the case in such a situation.
21. In view of the above, we conclude that a complainant can file an application for special leave to appeal against an order of acquittal of any kind only to the High Court. He cannot file such appeal in the Sessions Court. In the instant case the complaint alleging offences punishable under Section 16 (1) (1A) read with Section 7 of the PFA Act and the Rules is filed by complainant Shri Jaiswal, Local Health Authority through Delhi Administration. The appellant was acquitted by the Metropolitan Magistrate, Patiala House Courts, New Delhi. The complainant can challenge the order of acquittal by filing an application for special leave to appeal in the Delhi High Court and not in the Sessions Court. ... ... ..."
8. Since after the dismissal of the original complaint case Page No. 9. Contd... ... ...
CR No. 77/13. M/s Sahaj Infotech Vs. Abhitosh Asthana & Others.
u/s 138 NI Act, the respondents stood acquitted as per the provisions of Section 256 CrPC, therefore, in view of the ratio of the aforesaid case by the Hon'ble Supreme Court, the revisionist can only file an application for special leave to appeal in the Hon'ble Delhi High Court and neither the revision petition nor any appeal is maintainable before this Court, against the acquittal order of respondents, in original complaint case u/s 138 NI Act. Consequently, the present revision petition is dismissed, being not maintainable.
9. A copy of this order alongwith TCR be sent to the ld.
Trial/Successor Court, for information and consignment.
10. Revision petition file be consigned to record room. Announced in the open Court on 15.4.2014.
(ASHUTOSH KUMAR) ADDITIONAL SESSIONS JUDGE3 :
DWARKA COURTS : DELHI Page No. 10. Contd... ... ...