Delhi District Court
M/S Ranbaxy Laboratories Ltd vs M/S Standard Medical Hall on 17 March, 2008
: 1 :
IN THE COURT OF SHRI S. K. SARVARIA ADDITIONAL SESSIONJUDGE,
NEW DELHI
CR No. 77/2007
M/s Ranbaxy Laboratories ltd.
having its Corporate Office at
Plot no. 90, Sector 32, Gurgaon,
Haryana and having its Registered officer
at A11, Sahibzada Ajit Singh Nagar,
District Ropar (Punjab)
............Petitioner
VERSUS
1. M/s Standard Medical Hall,
a partnership firm having its office
A73, Model Town Extension, Ludhiana
Also at :
C/o New Life Medicos
125, Opp. UCO Bank
GT Road, Cssertta, Amritsar
2. Mr Gurpreet Singh
Partner and signatory of the cheque
M/s Standard Medical Hall
A73, Model Town Extension
Ludhiana
Also at:
C/o New Life Medicos
125, Opp. UCO Bank
GT Road, Cssertta, Amritsar
.............Respondents
: 2 :
ORDER
This revision petition is filed by the petitioner company against the order dated 22/5/2007 passed by learned Metropolitan magistrate, New Delhi dismissing the complaint under section 138 of The Negotiable Instruments Act (in short Act). The petitioner company filed the complaint under section 138 of the Act against the respondents partnership firm and its partners alleging that during the normal course of the business the respondent partnership firm received various consignments of Drugs for a sum of Rs 16, 88, 451.94 and to discharge their liability the respondent No.1 issued a cheque bearing No. 105436 dated 20/11/2001 for Rs. 16, 88, 451 . 94 which was dishonoured on presentation. After presummoning evidence the respondents/accused persons were summoned, notice under section 251 CrPC was given to the respondent/accused persons by learned Metropolitan Magistrate to which they pleaded not guilty. Thereafter, the case was fixed for evidence of complainant/petitioner on 10/11/2005, 6/6/2006, 13/10/2006, 12/2/2007 and 22/5/2007 and ultimately the complaint was dismissed for not prosecution by the order dated 22/5/2007. The said order dated 22/5/2007 of learned Metropolitan magistrate is under challenge in this revision petition.
The arguments on behalf of petitioner are that a huge amount of Rs. 16,88, 451.94/ is involved in the matter and the respondents/accused initially avoided to appear before the learned Metropolitan Magistrate and a appeared only when nonbailable warrants were issued. The petitioner/complainant either through authorised representative or its counsel : 3 : had been appearing regularly till the last date of hearing dated 22/5/2007 and the petitioner/complainant has failed to lead evidence due to the fact that because its authorised representative was out of station for some dates and on the last date of hearing he could not appear as his father expired a week before the date of hearing dated 22/5/2007. It is argued that the default of the appearance of complainant or non production of evidence on the earlier date cannot be a ground for dismissal of complaint. Reliance is placed upon the authority Mohd. Azeem versus A. Venkatesh and another (2002) 7 Supreme Court Cases 726 wherein following observations were made "From the contents of the impugned order of the High Court, we have noticed that there was one singular default in appearance on the part of the complainant. The Learned Judge of the High Court observes that even on earlier dates in the course of trial, the complainant failed to examine the witnesses. But that could not be a ground to dismiss his complaint for his appearance (sic absence) on one single day. The cause shown by the complainant of his absence that he had wrongly noted the date, has not been disbelieved. It should have been held to be a valid ground for restoration of the complaint.
In our opinion, the learned Magistrate and the High Court have adopted a very strict and unjust attitude resulting in failure of justice. In our opinion, the learned Magistrate committed an error in acquitting the accused only for absence of the complainant and one day and refusing the restore the complaint when sufficient cause for the absence was shown by the : 4 : complainant."
It is next argued that the impugned order of the learned trial court is not an order of acquittal and failure of the prosecution to produce witnesses cannot lead to order of acquittal of the accused. Reliance is place upon the authority The State (Tamil Nadu) versus Veerappam and others AIR 1980 Mad 260 wherein Division Bench of Madras High Court made the following observations "There was a quite a number of decisions in which it had been held that an acquittal of the accused on the failure of the prosecution to produce the witnesses is not legal. (vide State Vs. Kaliram Nandlal MANU/BH0026/1968), the State of Mysore Vs. Ramu, 1973 Mad LJ (Crl) 116:
(1973 Cri.L.J 1257) (Mys ; State of Mysore Vs. Kalilulla Ahmad Sheriff. AIR 1971 Mys 60; Kanduri Misra Vs. Sabadev Kunda, (1962) 2 Cri.L.J 295; State of Orissa Vs. Sibcharan Singh, MANU/OR/0059/1962; State of Mysore Vs. Somala, 1972 Mad L.J (Crl) 476: (1972 Cri.L.J 1478) (Mys); State of Mysore Vs. Shanta, 1972 Mad L.J. (Cri) 589 (Mys); State Vs. Nagappa, 1973 Cri.L.J 548 (Mad); Public Prosecutor Vs. Sambangi Mudaliar, MANU/TN/0174/1965;
State of Kerala Vs. Kunhiaraman, 1964 Mad L.J. (Cri) 330 (Ker); State of Mysore Vs. Narsimha Gowda, AIR 1965 Mys 167; State of Gujarat Vs. Thakorbhai Sukhabhai, MANU/GJ/0062/1968, State of UP Vs. Ramjani, All. L.J 1126; Lakshmiamma Kochukuttiamma Vs. Raman Pillai, AIR 1952 Trav Co 268; State Vs. Madhavan Nair, 1959 Mad L.J (Cri) 633 (Ker); Emperor Vs. Varadarajulu Naidu, AIR 1932 Mad 25 (2); State of Kerala Vs. Desan Mary, : 5 : 1960 Mad L.J (Cri) 378 (Ker); Kesar Singh Vs. State of Jammu & Kashmir, 19631 Cri.L.J 765: (AIR 1963 J&K 23); R.K.V. Motors & Timbers Ltd. Vs. Regional Transport Authority, Trivandrum, MANU/KE/0012/1960; K.K Subbier Vs. K.M.S. Lakshmana Iyer, 1942 Mad WIN (Cri) 64: (AIR 1942 Mad 452 (1) ); State of Tripura Vs. Niranjan Dev Barma, 1973 Cri.L. J 108 (Tripura); Apren Joseph Vs. State of Kerala, 1972 Mad L.J (Cri) 10; (1972 Cri.L.J 1162) (Ker) as against these decisions, there are the following decisions in which it has been held that acquittal on the ground of non production of witnesses by the prosecution was proper. It was further observed as follows " It may be noted that in the old Criminal Procedure Code, before the amendment of 1973, and Section 251A which dealt with the trial of warrant cases instituted on police report there was not provision whereby the Magistrate on the application of the prosecution could issue summons to any of its witnesses directing him to attend or produce any documents or other thing. In the present Code, there is such a provision in Sec. 242 (2) in regard to the trial of warrant cases instituted on a police report and in section 254 (2) in regard to the trial of summons cases. Therefore the aforesaid four decisions would no longer be could Law."
It is also argued that if the complaint under section 138 of the Act is dismissed in default for non prosecution it should be restored so that the complaint is decided on merit. Reliance is placed upon the authorities Plaza Cables Electric Pvt Ltd Vs Kamal Khurana I (2007) BC 254 wherein the complaint case under Section 138 of the Negotiable Instrument Act was : 6 : dismissed in default for non prosecution, when it was listed for arguments on charge. This was one of the complaint/case which was transferred to New Rohini Court from Tis Hazari Court and the complainant had shown sufficient cause for non appearance in the Rohini Court on the date fixed. Our Hon'ble High Court made the following observations:
" Even otherwise, I am of the view that the technicalities should not block the road for justice. There is no adjudication of rights and liabilities of the parties on merits. No prejudice shall be caused to the respondent in case the parties are heard on merits of the grievance raised by the appellant in his complaint under Section 138 of the Negotiable Instrument Act."
Reliance is also placed upon on Associates Cement Co. Ltd Vs Keshvanand AIR 1998 SC 596, made the following observations " Reading the Section in its entirety would reveal that two constraints are imposed on the court for exercising the power under the Section. First is, if the court thinks that in a situation it is proper to adjourn the hearing then the Magistrate shall not acquit the accused. Second is, when the Magistrate considers that personal attendance of the complainant is not necessary on that day the Magistrate has the power to dispense with his attendance and proceed with the case. When the court notices that the complainant is absent on a particular day the court must consider whether personal attendance of the complainant is essential on that day for the progress of the case and also whether the situation does not justify the case being adjourned to another date due to any other reason. If the situation does not justify the case being : 7 : adjourned the court is free to dismiss the complaint and acquit the accused. But if the presence of the complainant on that day was quite unnecessary then resorting to the step of axing down the complaint may not be a proper exercise of the power envisaged in the Section. The discretion must, therefore, be exercised judicially and fairly without impairing the cause of administration of criminal justice.'' Reliance is also place upon on Indocon Micro Engineers Vs Pine Technology P. Ltd 100 ( 2002) DLT 211 Delhi where the complainant defaulted to appear on the ground of nothing down wrong date by the counsel. So complaint filed U/s 138 of Negotiable Instrument Act was dismissed in default. Our Hon'ble High Court after relying upon Asso Cement Co's case (supra) made the following observations " A similar view was earlier taken by a Division Bench of this Court in Shiv Kumar Vs Mohd Saghir and Ors. , 1997 JCC 149. The case law cited above, thus, shows that the Magistrate is not bound to dismiss a complaint for non appearance of the complainant under Section 256, C r.P.C. and he has to adopt one or the other course open to him in passing appropriate order. He has to exercise his discretion judicially. The contention of the petitioner that the default for appearance was on account of wrong noting of the date by the Counsel is supported not only by the affidavit of the employee of the complainant but also the file cover and the case diary of the Counsel. From them it appearance that there was sufficient cause which prevented the complainant and the Counsel from appearing on the date of hearing. Since : 8 : the presence of the complainant was not essential on the date of hearing, the learned Magistrate ought to have considered the second option of giving an adjournment of the case and not dismissing it in default. Learned Magistrate does not seem to have exercised his discretion judicially'' The arguments on behalf of the respondents/accused persons are that vide order dated 22/5/2007 the learned Metropolitan magistrate had dismissed the complaint of the petitioner/complainant company and has acquitted the respondents/accused persons. Therefore, the remedy available under law, to the aggrieved party, is appeal under section 378 (4) CrPC to the Hon High Court and not the revision petition. It is also argued that the respondent no. 2 is a resident of Ludhiana, Punjab and and appeared regularly before the learned Metropolitan Magistrate since 21/12/2004 and the revision petitioner was granted various opportunities to lead evidence on several dates and despite last opportunity granted to the petitioner if did not lead evidence so the learned Metropolitan Magistrate was pleased to acquit the accused and there is no illegality in the said order and the complainant was only pursuing the matter with the sole intention to harass the respondents. Therefore, revision petition is liable to dismissed.
I have heard the learned counsel for the petitioner and have gone through the written arguments filed on behalf of the parties, the record of the case and relevant provisions of law, carefully.
The first question which is to be decided in this revision petition is whether the revision petition or the appeal lies in this case? The impugned : 9 : order dated 22/5/2007 does not say that the respondents/accused persons are acquitted. The impugned order only speaks of dismissal of the complaint for nonprosecution on account of non production of evidence by the petitioner/complainant. The catena of judgments referred in Veerappam's case (supra) relied on behalf of the petitioner shows that the acquittal of the accused on the failure of the prosecution to produce the witnesses is not legal. Therefore, the impugned order cannot be termed as an order of acquittal of the respondent/accused persons. This order had the effect of not only the closure of the evidence of the petitioner/complainant but also shutting out the door for claiming the relief against the alleged bounced cheque of the respondent No.1 so it cannot be said to be an interlocutory order. The present revision petition is, therefore, legally maintainable. Hence, there was no need for the petitioner to file an appeal, as argued on behalf of the respondents.
The interest of justice demands that the parties to in litigation civil or criminal are imparted to substantial justice as per procedure established by law by the adjudication of their disputes and differences on merits after the fair opportunity of being heard and leading evidence is given to the parties. This legal proposition is also hinted and finds support from the Plaza Cables Electric P Ltd's case (supra) , Indocon Micro Engineers 's case (supra) and Associated Cement Co Ltd's case (supra), though the citations pertain to the cases where the complainant under section 138 of the Act was dismissed in default on account of non appearance of the complainant before learned : 10 : Magistrate. However, there cannot be denial of the fact that a party to a criminal trial is not entitled to indefinite opportunities for leading evidence though reasonable and fair opportunities must be given to the prosecution and accused in a criminal trial to lead their respective evidence. In the present case out of the five opportunities, referred before, given for leading evidence by the petitioner/complainant, post notice under section 251 Cr. P.C., on one of such opportunities that is 10/11/2005 the exemption from appearance of the accused was also sought. On another day fixed for evidence of the petitioner/complainant, i.e., 12/2/2007 the learned Metropolitan Magistrate concerned, was on leave. Therefore, the petitioner/complainant cannot be held liable for non production of evidence on these two dates. As regards the remaining three dates the contention on behalf of the petitioner is that it has failed to lead evidence due to the fact that the authorised representative was out of station for some urgent work and on the last occasion he could not appear as his father expired a week before the date of hearing i.e., 22/5/2007. Under the circumstances, I feel that it was not proper for the learned Metropolitan Magistrate to close the evidence of the petitioner/complainant and shut the door for justice on merit for him. However, while giving relief to the petitioner the interests of justice and the inconvenience caused to the respondents can also be not overlooked and the respondents are also entitled to be adequately compensated with costs.
In the light of the of the above discussion the impugned order dated 22/05/2007 of learned trial court is set aside subject to payment of cost of : 11 : Rs 10,000/by petitioner/complainant to the respondents/accused persons on or before appearance before learned Metropolitan Magistrate and also subject to payment of cost of Rs 10,000/ to be paid to Delhi Legal Services Authority, Patiala House Courts, New Delhi on or before appearance before learned Magistrate. The other condition imposed is that learned Metropolitan Magistrate shall give only two opportunities for evidence to the petitioner/complainant and no further opportunity shall be given to the petitioner/ complainant for this purpose. Parties shall appear before learned Metropolitan Magistrate on 15.4.08.
The trial could record be returned along with the copy of this order. The file of the revision petition be consigned to the record room. Announced in the open court on 17.03. 2008 ( S. K. SARVARIA ) Additional Sessions Judge New Delhi