Delhi High Court
Shiv Kumar vs Mohd. Sagir And Ors. on 5 December, 1996
Equivalent citations: 1997CRILJ1264, 1997RLR57
Author: Arun Kumar
Bench: Arun Kumar, K.S. Gupta
JUDGMENT Arun Kumar, J.
(1) This appeal by special leave is directed against the judgment dated May 20,1996 passed by Shri Sanjay Garg, M.M., Delhi.
(2) Facts giving rise to the present appeal, in brief, are that Shiv Kumar, appellant, filed a complaint u/S. 138 of the Negotiable Instruments Act against Mohd. Saghir, respondent 1 and M/s. Mohd. Rafiq Mohd. Shafiq & Co., respondent 2, on 11.11.91 and vide order dated July 4, 1994, both these respondents were summoned as accused for 9.9.94 by the trial Magistrate. Respondent 1 who appeared on 9.9.94 was admitted to bail. On that date itself appellant filed an application u/S. 319 Cr. P.C. and on that application Mohd. Atiq, Mohd. Abid, Mohd. Javed and Mst. Jamila Khatoon, respondents 3 to 6 being partners of respondent 2, were further ordered to be summoned as accused for 2.3. 95 by the trial magistrate vide order dated 16.1.95. Thereafter on 14.2.96 respondent 1 put in appearance along with Shri M.P. Singh, Advocate and the latter made a statement that he will be producing the remaining respondents on the next date of hearing and the case was postponed to 27.3.96 for appearance of respondents 3 to 6. On that date respondents 3 & 5 appeared before the trial Magistrate and they too were admitted to bail. An application for seeking exemption was filed on behalf of respondents 4 & 6 through counsel and the same was allowed and the case was posted for 22.4.96 for appearance of respondents 4 & 6 did not appear, non-bailable warrants were ordered to be issued against them for 20.5.96. Thereafter on the application filed on behalf of respondents 4 & 6 for cancellation of non-bailable warrants, the case was taken up on 23.4.96 and the order for issuing of non-bailable warrants against both of them was recalled and they were admitted to bail. However, on 20.5.96 when respondents 1 & 3 to 6 were present and the complainant was absent, the case was ordered taken up again at 2 Pm and at 2.20 Pm following order was passed by the trial Magistrate : "Present : None for the complainant. All the accused are present. The presence of the complainant is required as he was supposed to supply copies of the complaint to the accused. Complaint is dismissed in default. Accused are discharged.
(3) It is this order which is under challenge in this appeal.
(4) Contention advanced by Shri G.D. Gandhi appearing for the appellant was two fold. First, that the appellant mistook the next date of hearing on 22.4.96 as 22.5.96 instead of 20.5.96 and on account of that bonafide mistake neither the appellant nor his counsel appeared on 20.5.96 when the impugned order was passed. In support of this contention Shri Gandhi relies on the case diary which is maintained by him in the normal course of his professional work besides bringing to our notice the fact that the complaint has been pending for nearly four and a half years and the appellant has been throughout appearing regularly before the trial Magistrate prior to May 20,1996. Second contention of Shri Gandhi, learned counsel for appellant is that in view of the provision contained in Section 256 Cr. P.C. the trial Magistrate in the circumstances of the case was not justified in dismissing the complaint in default of appearance of the complainant.
(5) In paras 6 & 7 of the memorandum of appeal the appellant has stated that he misheard and mistook the adjourned date as 22.5.96 and the same was immediately got noted down by him in the counsel's diary : that on appearance on 22.5.1996 in court he came to know that the complaint was actually fixed for 20.5.96 and was dismissed in default on that date. In support of the statements made in the memorandum of appeal and also the application filed u/S. 378(4) Cr. P.C. appellant has filed his own affidavit dated 25.7.96. We are thus satisfied that the non-appearance on the part of appellant or his counsel on 20.5.90 was neither intentional nor can it be said to be due to negligence. It appears to be because of bonafide mistake in hearing the date as 22.5. 96 by the appellant and getting the same noted down in the counsel's diary.
(6) Coming to the second contention, u/S. 256 Cr.P.C. dismissal of a complaint for non-appearance is one of the options given to the Magistrate. He has other options too. He has the discretion to adjourn the hearing of the case to some other date. He has also the discretion to dispense with the attendance of the complainant and proceed with the complaint. When a Statute vests various options with the Magistrate, it is necessary that the option which he adopts should be exercised judicially and to advance the cause of justice. At the cost of repetition it may be noted that after the order dated 16.1.95 was passed on the appellant's application filed u/S 319 Criminal Procedure Code . to summon respondents 3 to 6 also as accused being partners of the firm respondent No. 2, Shri M.P. Singh, Advocate, on 14.2.96 undertook to produce them on the next date of hearing and when despite that undertaking and allowing of application for seeking exemption from appearance filed on behalf of respondents 4 & 6 on 27.3.96, they did not appear on 22.4.96, non-bailable warrants were ordered to be issued against them for 20.5.96. However, at the back of the appellant an application was filed by respondents 4 & 6 on 23.4.96 for recalling the order dated 22.4.90 for issue of non-bailable warrants against them and on that application that order was recalled and after admitting them to bail the case was adjourned for further proceedings to 20.5.96. As the complaint was fixed for further proceedings on 20.5.96 vide order dated 23.4.96 a better and more judicious approach on the part of the trial Magistrate would have been to adjourn the case instead of dismissing it in default on 20.5.96. He should not have taken the absence of the appellant on that date as a short-cut for disposal of the case. It may further be noticed that in the impugned order it has been stated that a copy of the complaint is to be supplied to the accused by the appellant. Section 204(3) Criminal Procedure Code . provides, that in a proceeding instituted upon a complaint made in writing, every summons or warrant issued under sub-section (1) shall be accompanied by a copy of such complaint. Therefore the respondents must have received the copy of the complaint with the summons issued to them. Further record of the trial court goes to show that some of the respondents have challenged the order of summoning by filing revision petitions before the Sessions Judge, Delhi, involving thereby that they must be having the copies of complaint with them. Be that as it may, even if technically copies of the complaint were to be supplied to the respondents, in the background of said facts the trial Magistrate was not right in exercising the discretion in the order dated 20.5.96.
(7) For the foregoing discussion, the appeal is accepted and the impugned order dated 20.5.96 is set aside. The complaint is restored to the stage at which it was dismissed in default and the trial Magistrate is directed to proceed further on the complaint of the appellant in accordance with law. Parties are directed to before him on 16.1296 (8) During the course of arguments it was brought to our notice that the criminal revision led by some of the respondents against the order of summoning was dismissed in default by an Additional Sessions Judge and as the complaint itself had been dismissed in default in the meanwhile, aggrieved respondents did not pursue the restoration of that criminal revision. It was urged that the time gap resulting due to dismissal of the complaint itself in default should not be taken against the respondents in the matter of restoration of their criminal revision. We are sure that the learned Additional Session Judge will take all relevant facts in to consideration while disposing of the application for restoration of the criminal revision.