Delhi District Court
Anand Pal vs Surjeet Singh on 1 October, 2011
1
IN THE COURT OF S. K. SARVARIA ADDL. SESSIONS JUDGE &
DISTRICT JUDGE/INCHARGE (N/W) ROHINI COURTS: DELHI
CR No. 85/2011
Anand Pal
S/o Sh. Raghubir Singh
R/o VPO Kakrola
New Delhi ... Petitioner/ Complainant
VERSUS
Surjeet Singh
S/o Sh. Sarup Singh
R/o VPO Dhankot
Distt. Gurgaon. ... Respondent/ Accused
Date of institution: 26.09.2011
Date when arguments were heard: 30.09.2011
Date of order: 03.10.2011
ORDER
1. By this revision petition the petitioner/complainant has requested for setting aside the order dated 06.06.2011 by which the complaint filed by the petitioner under section 138 of the Negotiable Anand Pal Vs Surjeet Singh 2 Instruments Act was dismissed in default by the learned trial court on account of absence of the complainant or his counsel.
An application is filed for condonation of delay. In view of the circumstances explained in the application under Section 5 of Limitation Act the delay in filing the revision petition is condoned.
2. The contention on behalf of the petitioner is that on 16.03.2011 the complainant was not well so he telephonically informed his counsel that he could not appear in the court. His counsel assured him that he would move an exemption application for him before Ld M.M. In the evening, the complainant came to know that from his counsel that Ld M.M was on leave and the next date of hearing is fixed for 16.08.2011. Accordingly, on 16.08.2011, he approached the court of Ld M.M where he came to know that his complaint has been dismissed on 06.06.2011 for non prosecution and non appearance of the complainant. Therefore, the revision petition should be allowed and the complaint should be restored to the original number.
3. I have heard the learned counsel for the petitioner and have gone through the trial court record, revision file and the relevant provisions of law. The basic question is whether the revision lies against the impugned Anand Pal Vs Surjeet Singh 3 order of learned trial court or the appeal lies? If the appeal lies then it lies before Sessions court or before Hon'ble High Court.
It cannot be disputed that the complaint in question pertained to a Summons Case which entails Summon Trial. Therefore, on account of absence of complaint and counsel for the complainant before learned trial court Section 256 Cr.P.C is attracted.
The basic law is that the Court shall not acquit an accused under Section 256(1) of the Code of Criminal Procedure,1973, before issuance of process/summons to accused in Form No. 1 of the Second Schedule of the Code without appointing a day for his appearance in Court. Any order of acquittal passed under Section 256(1) of the Code, before issuance of process/summons to the accused will be clearly illegal and without jurisdiction.(See Bristo Foods Pvt. Ltd v. Hariharan Nair & Anr IV (2007) BC 319 (Ker)). Therefore, when the summons have been issued in the complaint case for appearance of the accused or on subsequent date when the accused is present the absence of the complainant leads to dismissal of the complaint and acquittal of the accused. In this regard the relevant paras of the decision in Raja S/o. Dr. S.P. Upadhyay v. State of Maharashtra, 1999(3) Civ.C.C. 369 (Nagpur) are worth noting and the Anand Pal Vs Surjeet Singh 4 same is as under:
"8. Therefore, the only question, which deserves consideration is as to what remedy was available to the complainant against the order passed by the learned Magistrate under section 256(1) of the Criminal Procedure Code, 1973. There is no dispute about the fact that the learned Magistrate has dismissed the complaint under section 256(1) of the Criminal Procedure Code, 1973, as the complainant remained absent and as a consequence of such dismissal, passed an order that the accused is discharged. Obviously, the order of the learned Magistrate discharging the accused was incorrect to the extent that he ought to have acquitted the accused in terms of section 256(1) of the Criminal Procedure Code, 1973. The complainant appears to have been misled by the fact that the Magistrate having discharged the accused, he could avail the remedy of preferring a revision and that is what it appears from the Memo of Revision preferred by the complainant before the Court of Sessions. In the circumstances, the learned Additional Sessions Judge ought to have summarily rejected the Anand Pal Vs Surjeet Singh 5 Revision Application directing the complainant to prefer an appeal against the order passed by the Magistrate, under section 256(1) of the Criminal Procedure Code, 1973; but the learned Additional Sessions Judge committed an error in entertaining the revision on merits and interfering with the order by the learned Magistrate.
9. It cannot be gain said that merely because the Magistrate committed an error in recording the order of discharge, that would invest the complainant with a right to prefer a revision and he was justified in doing so. As the order itself is very clear that it has been passed under section 256(1) of the Criminal Procedure Code, 1973, it will necessarily have to be construed an order of acquittal under section 256(1) and not that of discharge. There is one more distinction which will have to be kept in mind and that is, that once an order of acquittal under section 256(1) of the Criminal Procedure Code, 1973 is passed, then the complainant is debarred from filing a second complaint on the same facts so long as the order of acquittal is not set aside. Therefore, the Anand Pal Vs Surjeet Singh 6 only course open to the complainant was to prefer an appeal in the High Court against the said order of the learned Magistrate by special leave of the Court under section 378(5) of the Criminal Procedure Code, 1973."
4. The question arose directly in Kalpana Tyagi Vs. Sneh Lata Sharma 2003 Crl.J 3395 Delhi. In this case in a complaint filed under Section 138 of Negotiable Instruments Act was dismissed on account of the absence of the complainant or his Counsel and accused was acquitted. The question before our Hon'ble High Court was whether revision lies or the appeal against such an order. The following observations were made by our Hon'ble High Court:
"8. A distinction, therefore, has to be drawn in regard to the complaints dismissed prior to the summoning of an accused and those dismissed subsequent to the summoning of the accused. If a complaint is dismissed prior to the summoning of an accused the order may be challenged by way of filing a revision but once Section 256 comes into play the dismissal of a complaint has the Anand Pal Vs Surjeet Singh 7 effect of acquittal of an accused and only an appeal can be filed under Section 378 of the Code to challenged his acquittal."
5. In the light of above legal position the facts before learned trial court needs to be scrutinized to ascertain whether revision appeal lies against the impugned order. The learned trial court's record shows that on 01/05/2008 after satisfying itself that a prima facie case under section 138 of the Negotiable Instruments Act, is disclosed the respondent/accused was summoned by learned trial court. Thereafter the summons were issued which remained unserved due to non filing of PF till the impugned order is passed, on 06.06.2011. In the light of legal position highlighted by Kalpna Tyagi's case (supra) and Bristo Food's case (supra) with the dismissal of the complaint the accused shall be deemed to have been acquitted by the learned trial court. Therefore, appeal and not the revision lies against the impugned order of acquittal.
6. The matter does not end here. The next logical question is whether against the impugned order the appeal lies before Sessions court or before Hon'ble High Court. If it lies before Sessions court then by virtue Anand Pal Vs Surjeet Singh 8 provisions of Section 399 (2) read with Section 401 (5) CPC, the revision petition of the petitioner can be converted into the appeal. If it lies before Hon'ble High Court then it cannot be so converted and so is not maintainable before Sessions Court.
7. Section 378 Cr.P.C. deals with appeal against acquittal. A careful perusal of this provision of law shows that after the Cr.P.C. was amended by Amending Act 2005 (25 of 2005) with effect from 23/6/2006 the appeal against judgment of acquittal passed by Magistrate in police cases lies before Sessions Court which is a clear departure from the earlier position prior to 23/6/2006 when the appeal against acquittal in police cases or in private complaint cases used to be filed before Hon'ble High Court. However, it is only half of the story and this legal position after 23/6/ 2006 is with regard to police cases only. The legal position as to forum in appeal against acquittal in private complaint cases remained unchanged by the said Amending Act 2005. Therefore, as in past, the appeal would lie before Hon'ble High Court against the judgment of acquittal passed by Magistrates in private complaint cases including the complaint cases under the provisions of section 138 of the Negotiable Instruments Act. This legal position is indicated by Subsection (4) of Section 378 Cr.P.C.
Anand Pal Vs Surjeet Singh 9
8. In view of the above discussion the appeal against the impugned order of dismissal of the complaint in the default lies before Hon'ble High Court and not before Sessions Court. The revision petition is, therefore, dismissed being not maintainable. The trial court record be returned along with the copy of this order. The order be sent to the server (www.delhidistrictcourts.nic.in). The revision file be consigned to the record room.
Announced in the open court on 3rd day of October, 2011 (S.K. SARVARIA) DISTRICT JUDGE & INCHARGE (N/W) ASJ ROHINI DISTRICT COURTS: DELHI Anand Pal Vs Surjeet Singh 10 CR No. 85/2011 Anand Pal Vs Surjeet Singh 01.10.2011 Present: None.
Vide separate judgment of even date, the revision petition is dismissed.
The revision file be consigned to the record room.
(S.K. SARVARIA) DISTRICT JUDGE & INCHARGE (N/W) ASJ ROHINI DISTRICT COURTS: DELHI Anand Pal Vs Surjeet Singh