Delhi District Court
M/S Rajni Industries vs M/S Lucky Enterprises on 28 September, 2020
IN THE COURT OF MS NEENA BANSAL KRISHNA
PRINCIPAL DISTRICT & SESSIONS JUDGE
SOUTH EAST : SAKET COURT, NEW DELHI.
Cr. REVISION NO. 33/2020
M/s Rajni Industries
Through
It's Sole Proprietor
Ms. Rajni Dua
Through her authorized representative / signatory
Shri Rishi Sharma
Office at W108, Greater Kailash,
PartII, New Delhi - 110048.
... REVISIONIST
VERSUS
M/s Lucky Enterprises
Through Proprietor Sh. Vijay Jain
At : New Subhash Nagar
Behind Kali Devi Mandir
Hansi, Haryana 125033
...RESPONDENT
Date of filing : 16.01.2020
First date before this court : 18.01.2020
Date of Decision : 28.09.2020
APPEARANCE : Shri Prashant Singh, learned counsel for revisionist
JUDGMENT
1. This criminal revision under Section 397/398/399 Cr.P.C. has been filed against the order dated 30.10.2019 passed by CR No. 33/2020 Page 1 of 5 pages the learned MM whereby the complaint under Section 138 Negotiable Instruments Act filed by the complainant / revisionist, has been dismissed under Section 204 (4) Cr.P.C.
2. Facts in brief are that a complaint under Section 138 NI Act was filed against the respondent in respect of cheque bearing No.000022 dated 12.01.2016 for Rs.1,31,884/ which on presentation was dishonoured for the reason "payment stopped". It is submitted that the presummoning evidence was recorded and the accused was summoned vide order dated 09.07.2016 and thereafter, revisionist took steps for issuance of summons upon the respondent but respondent could not be served for long time. Learned MM opined that the accused was evading summons. Consequently, bailable warrants and thereafter NBWs were issued. Despite this, the respondent could not be served and process under Section 82 C.P.C. was directed to be issued.
3. It is submitted that the counsel for the revisionist had started some repair work in his chamber and the files had to be removed to his house and also to the chamber of his colleague. The steps therefore could not be taken for process. In the meantime, on 30.10.2019, AR of the complainant reached the court of the learned MM at about 10.15 am but was informed that the matter has been dismissed in default. It is submitted that only on one occasion the CR No. 33/2020 Page 2 of 5 pages revisionist failed to comply with the orders of the court and take steps for issuance of process. It is asserted that nonappearance of the revisionist was not intentional and he had been pursuing his complaint diligently and taking steps regularly for service of the process. The impugned order dated 30.10.2019 may therefore be set aside and the complaint be restored.
4. I have heard the submissions and perused the record. My observations are as under :
5. The first aspect is whether notice of revision is to be issued to the respondent.
6. In Hindustan Domestic Oil & Gas Co. (Bombay) Limited & Ors. vs State & Ors. 2012 (4) JCC 2310, it was observed that an order dismissing the complaint for nonprosecution or in default, which is made the subject matter of the revision, cannot be equated with "revision petitions" that are filed on substantive grounds or touch on the merits. Courts have recognized difference between orders which are procedural and substantive orders. [Grindlays Bank Ltd. vs. Central Government Industrial Tribunal and Ors. 1980 (Supp) SCC 420]. It was thus held that an order dismissing the complaint in default or nonprosecution did not touch upon factual or legal merits of the complaint. It is a reflection CR No. 33/2020 Page 3 of 5 pages on or about the conduct of the complainant in proceedings before the Court and the opinion formed by Court about said conduct. Such orders if they did not reflect and take into consideration merits of the case or complaint, would not require notice to the opposite side when examined in a revision petition. Such orders are not prejudicial to other side as they did not reflect and take into consideration merits and demerits of the allegations. When a revision petition is filed against an order dismissing a complaint for nonprosecution or in default and same is allowed, it is not an order that causes prejudice to opposite side, as there was no application of mind or reflection on merits whatsoever. This distinction has to be thus, kept in mind.
7. In view of the law mentioned above, no notice is required to be served upon the respondent.
On Merits
8. The perusal of the trial court record shows that the revisionist had been appearing and had been pursuing his complaint diligently for issuance of process by filing the PF. The PF could not be filed only on one date.
9. Considering the explanation given by the learned counsel for the revisionist for non appearance on 30.10.2019 and in CR No. 33/2020 Page 4 of 5 pages the interest of justice, the present revision is allowed. The complaint is restored to its original number. Learned MM may proceed further in the matter, as per law. Revisionist to appear before the court of learned MM on 05.10.2020.
10. A copy of this judgment be sent to the learned trial court.
11. Revision file be consigned to record room.
Digitally signed by NEENA NEENA BANSAL
BANSAL KRISHNA
Date: 2020.09.28
Announced in the open court on KRISHNA 16:51:49 +0530
this 28th day of September 2020 (NEENA BANSAL KRISHNA)
Principal District & Sessions Judge
South East, Saket Courts
New Delhi
CR No. 33/2020 Page 5 of 5 pages