Punjab-Haryana High Court
Chandan Singn vs Lakhmi Chand on 15 July, 2013
Author: Sabina
Bench: Sabina
CRM No.M-12390 of 2012 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
(229)
CRM No.M-12390 of 2012 (O&M)
Date of decision: 15.07.2013.
Chandan Singn
......Petitioner
Versus
Lakhmi Chand
.......Respondent
CORAM: HON'BLE MRS. JUSTICE SABINA
Present: Mr. Vikash Kumar, Advocate for the petitioner.
Mr. Ajay Ghangas, Advocate for the respondent.
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SABINA, J.
Petitioner has filed this petition under Section 482 of the Code of Criminal Procedure, 1973 seeking quashing of the order dated 06.05.2010 (Annnexure P-4) whereby, revision petition filed by the respondent was allowed and the Trial Court was directed to decide the trial on merits.
Learned counsel for the petitioner has submitted that the complaint had been dismissed for want of prosecution by the Trial Court vide order dated 11.02.2010. The case was fixed for appearance of the accused, hence, the presence of the complainant was necessary. The dismissal of the complaint on account of non- appearance of the complainant amounts to acquittal of the petitioner. Complainant-respondent could have only filed an appeal before this Court. Hence, revision petition filed by the respondent before the Sandeep Sethi 2013.07.22 17:36 I attest to the accuracy and integrity of this document CRM No.M-12390 of 2012 (O&M) -2- Sessions Court was not maintainable. In support of his argument, learned counsel has placed reliance on Damodar S. Prabhu Vs. Sayed Babalal H. 2010(5)SCC 663 wherein it was held as under:-
14. "It may be noted here that Section 143 of the Act makes an offence under Section 138 triable by a Judicial Magistrate First Class (JMFC). After trial, the progression of further legal proceedings would depend on whether there has been a conviction or an acquittal.
In the case of conviction, an appeal would lie to the Court of Sessions under Section 374(3)
(a)of the Criminal Procedure Code; thereafter a Revision to the High Court under Section 397/401 of the Criminal Procedure Code and finally a petition before the Supreme Court, seeking special leave to appeal under 136 of the Constitution of India. Thus, in case of conviction there will be four levels of litigation.
In case of acquittal by the JMFC, the complainant could appeal to the High Court under Section 378(4) of the Criminal Procedure Code, and thereafter for special leave to appeal to the Supreme Court under Article 136. In such an instance, therefore, there will be three levels of proceedings."
Learned counsel has further placed reliance on Vinod Kumar Vs. State of Punjab, 1999(4) R.C.R. (Criminal) 469 :
wherein it was held as under:-
3. "The brief facts of the case are that respondent No.2 Mohinder Pal filed criminal complaint under Section 138 of the Negotiable Instruments Act and the proceedings were dropped after serving notice to the respondent on 08.04.1996. The contention of the learned Sandeep Sethi 2013.07.22 17:36 I attest to the accuracy and integrity of this document CRM No.M-12390 of 2012 (O&M) -3- counsel for the petitioner is that the impugned order dated 08.04.1996 was subject to appeal and not subject to revision because the order of discharge in complaint case has the effect of acquittal. In support of his contention, learned counsel for the petitioner relies upon 1987(1) RCR 616, Balram Suraj Vs. Dev Raj Dhiman where it was held that the discharge of accused by Magistrate in a case triable as a summons case, the order of discharge has to be read as an order of acquittal under Section 255 Cr.P.C. In these circumstances, only (sic) was maintainable and not revision of respondent No.2. The petitioner has taken a specific objection in this regard even before the revisional court that it has no jurisdiction to entertain the revision. This aspect of the case has not been rightly decided by the learned Sessions Judge, Gurdaspur. Therefore, the order dated 30.01.1999 is hereby set aside and the order of the Magistrate stands restored. The revision petition stands allowed."
Learned counsel for the respondent, on the other hand, has opposed the petition.
In the present case, respondent filed the complaint in question (Annnexure P-1) against the petitioner with regard to dishonour of cheque dated 25.11.2007 in the sum of Rs.4,00,000/-. Respondent led his preliminary evidence in support of his complaint. Vide order dated 29.02.2008, respondent was ordered to be summoned to face the trial.
On 11.02.2010, following order was passed by the trial Court:-
Sandeep Sethi 2013.07.22 17:36 I attest to the accuracy and integrity of this document CRM No.M-12390 of 2012 (O&M) -4-
"Case called several time since morning but none has appeared on behalf of complainant. It is already 3.30 P.M. Waited sufficiently. No more wait is justified. Hence, complaint of the complainant is dismissed in default for non-appearance of complainant. File be consigned to record room, after due compliance."
Aggrieved against the said order, respondent preferred a revision and the same was allowed by the Court of Revision vide order dated 06.05.2010. The said order was passed without notice to the petitioner and the same was allowed in the absence of the petitioner. Petitioner could not take up the plea of maintainability of the revision petition before the Court of Revision. The dismissal of the complaint amounts to acquittal of the petitioner.
Section 256, Cr.P.C. reads as under:-
"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 hereinbefore 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 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 Sandeep Sethi 2013.07.22 17:36 I attest to the accuracy and integrity of this document CRM No.M-12390 of 2012 (O&M) -5- far as may be, apply also to cases where the non-
appearance of the complainant is due to his death."
Thus, as per the above provision, if summons have been issued on a complaint and on the date appointed for appearance of the accused or any date subsequent thereto, complainant fails to appear, then Magistrate may either acquit the accused or adjourn the case for hearing to some other date. In the present case, the Magistrate while passing the order dated 11.02.2010 did not choose to adjourn the case but dismissed the complaint for non-appearance of the complainant. The said date was fixed for appearance of the accused. Hence, the dismissal of the complaint in default would amount to acquittal of the accused. Against the acquittal of the accused, the complainant had a right to file an appeal under Section 378 (4) Cr.P.C. Section 378 (4) Cr.P.C. reads as under:-
(4) "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."
Since the right of appeal has been specifically provided to the respondent, he could not have filed a revision before the Sessions Judge. In these circumstances, the learned Additional Sessions Judge erred in allowing the revision petition, as the same was not maintainable.
Sandeep Sethi 2013.07.22 17:36 I attest to the accuracy and integrity of this document CRM No.M-12390 of 2012 (O&M) -6-
Accordingly, this petition is allowed. Impugned order dated 06.05.2010 whereby, revision petition filed by the respondent was allowed by the learned Additional Sessions Judge is set aside. However, respondent would be at liberty to avail his right of appeal, if so advised.
(SABINA) JUDGE July 15, 2013 sandeep sethi Sandeep Sethi 2013.07.22 17:36 I attest to the accuracy and integrity of this document