Delhi High Court
Rexnoil Lubricants & Ors vs Adesh Gupta on 4 July, 2012
Author: V.K. Shali
Bench: V.K. Shali
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Crl. M.C. NO.2464/2011
Date of Decision: 04.07.2012
REXNOIL LUBRICANTS & ORS. ...... Petitioners
Through: Mr.S.K. Sood, Adv.
Versus
ADESH GUPTA ...... Respondent
Through: None
CORAM:
HON'BLE MR. JUSTICE V.K. SHALI
V.K. SHALI, J. (Oral)
Crl. M.A. Nos.7842-43/2011
1. This is a petition filed by the petitioners under Section 482 Cr.P.C., praying therein for setting aside the orders dated 8.11.2000 and 21.1.2011.
2. So far as the order dated 8.11.2000 is concerned, it is an order summoning the petitioners in respect of an offence under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as NI Act).
3. By virtue of the order dated 21.1.2011, the application of the petitioners under Section 256 Cr.P.C. for discharge was rejected.
Crl. M.C.No.2464/2011 Page 1 of 5
4. Briefly stated, the facts of the case are that the respondent had filed a complaint under Section 138 of the NI Act against the present petitioners. After adducing pre-summoning evidence, the Court was pleased to pass an order on 8.11.2000, summoning the accused persons for their trial in respect of the offence. It took considerable time to serve the petitioners.
5. The petitioners, by virtue of the present petition, has challenged the order of summoning after a lapse of almost 11 years. This prayer of the petitioners is hopelessly barred by latches and inordinate delay and, therefore, cannot be entertained. The summoning order, after a lapse of 11 years, cannot be set aside, therefore, to that extent, the prayer of the petitioners is not maintainable.
6. So far as the prayer of setting aside the order dated 21.1.2011 is concerned, the petitioners had filed an application under Section 256, Cr.P.C.. The said Section reads as under:-
256. 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 Crl. M.C.No.2464/2011 Page 2 of 5 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 far as may be, apply also to cases where the non-appearance of the complainant is due to his death.
7. A perusal of the aforesaid Section would clearly show that the Section does not deal with the question of discharge of the accused on merits. It only talks about that in case the complainant does not appear in a summons case, after the summoning order is passed, the learned Magistrate is not bound to adjourn the matter. He can dismiss the complaint and acquit the accused.
8. Therefore, so far as the application under Section 256 Cr.P.C.
is concerned, the same was not maintainable as the Crl. M.C.No.2464/2011 Page 3 of 5 complainant was present. The application was rightly dismissed by the learned Metropolitan Magistrate. Apart from this, it may be mentioned that the petition came up for hearing for the first time on 1.8.2011 and it was dismissed for non-prosecution at 2:45 P.M. as nobody appeared even at the second call. The petitioners thereafter filed an application for restoration of the petition, which was allowed on 12.10.2011 and the learned counsel for the petitioners, after brief submissions, sought time to address the Court. The matter was adjourned to 6.2.2012. On 6.2.2012, the petitioners were directed to place on record the Trial Court record, as a number of points were raised in that regard. The matter was adjourned to 22.2.2012. On 22.2.2012, again the petitioners did not appear and consequently the petition was again dismissed for non-prosecution.
9. The petitioners have now, after a lapse of almost four months, filed an application bearing Crl. M.A. No.7842/2012, for restoration of the petition along with an application bearing Crl.M.A. No.7843/2012 for condonation of delay of 69 days in filing the application for restoration of the petition. Neither Crl. M.C.No.2464/2011 Page 4 of 5 any cogent reason has been given by the petitioners for their non-appearance on 22.2.2012 nor any sufficient cause has been shown by them for filing the application for restoration of the petition belatedly. It seems that the petitioners are taking the filing of the petition too casually. I do not think that it is a fit case where sufficient cause has been shown by the petitioners for condonation of delay in filing the application for restoration of the petition and accordingly the same is dismissed. Even on merits, the points, which are being urged by the petitioners, are the questions to be adjudicated by the learned Trial Court after the parties have been permitted to adduce the evidence. So far as the rejection of the application for discharge is concerned, that has no merit.
10. The applications are, accordingly, dismissed.
V.K. SHALI, J.
04 July, 2012 tp Crl. M.C.No.2464/2011 Page 5 of 5