Delhi District Court
Abhishek Chaudhary vs State on 27 September, 2011
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IN THE COURT OF SHRI H.S.SHARMA, DJ/ASJ, NEW DELHI
CR No. 49/11
Abhishek Chaudhary
S/o Sh Mordhwaj Singh Chaudhary
R/o Plot No. 78, Alkapuri
Alwar, Rajasthan 301001
Through his power of attorney
& Father Sh Mordhwaj Singh Chaudhary
S/o Late Sh Pyare Lal
R/o Plot No. 78 Alkapouri
Alwar, Rajasthan 301001 ........... Petitioner
Versus
1 State
2 M/s Shika Developers Ltd
D74, Regal Building, New Delhi
3 Sh Tilak Raj s/o Late Sh B R Anand
Director/Authorized Signatory
M/s Shika Developers Ltd
74D, Regal Building, New Delhi
4 Smt Prem Lata Anand
W/o Sh T R Anand
M/s Shika Developers Ltd
74D, Regal Building, New Delhi
5 Smt Shikha Pahuja
Director
M/s Shika Developers Ltd
Distt. Judge/ASJ, ND
Abhishek Choudhary Vs State Page No. 1 of 6
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R/o B37, Swami Nagar
New Delhi
Also at: Behind Rivoli Cinema
Connaught Place, New Delhi
Date of institution of the revision petition : 22/09/2011
Date of receipt of the petition in this court : 22/09/2011
Date when reserved for order : 26/09/2011
Date of announcement of order : 27/09/2011
Present:Sh. Mordhawaj Singh Choudhary, Advocate for the petitioner
ORDER:
1 The petitioner had filed a criminal complaint under section 138 Negotiable Instruments Act against respondents no. 2 to 5.
2 Vide order dated 21.7.2010, Ld. MM had directed thast the respondents no. 2 to 5 be summoned on deposit of PF etc. 3 The petitioner did not appear on 3.12.2010. Ld. MM did not dismiss the complaint in default and adjourned the matter to 27.1.2011. He also did not appear on 27.1.2011. However, the Ld. MM this time also did not dismiss the complaint in default and adjourned the matter to 8.3.2011 for further proceedings. 4 On 8.3.2011, also no one appeared on behalf of the petitioner. As such the complaint was dismissed u/s 256 CrPC for Distt. Judge/ASJ, ND Abhishek Choudhary Vs State Page No. 2 of 6 3 nonappearance. It was also mentioned in the order that the accused are acquitted.
5 The petitioner has now impugned the order dated 8.3.2011.
6 When the petition was received, father of the petitioner appeared and submitted that he is an advocate and be permitted to advance arguments. It was enquired from him as to how this revision was maintainable in view of the law laid down by our own Hon'ble High Court in Kalpana Vs Sneh Lata,2003 Crl. L.J 3395.
7 Sh Mordhawaj Singh Choudhary, father of petitioner submitted that since the accused had not appeared before the Ld. Trial Court, therefore, the dismissal of the complaint did not amount to "acquittal" of the accused.
8 I have considered the submissions.
9 In the present case the accused (respondents) were ordered to be summoned. The complaint was dismissed in default on 8.3.2011. The question before the court is as to what is the affect of the order dated 8.3.2011.
10 This question had come up before the Hon'ble High Distt. Judge/ASJ, ND Abhishek Choudhary Vs State Page No. 3 of 6 4 Court in two different cases. In both the cases the effect of dismissal of the complaint in default had been discussed at length. 11 In KK Gupta Vs Mohd. Jaros and Another 2002 VIII AD (Delhi) 47, the accused was present but the complainant was absent on the date of hearing. The complaint was dismissed in default u/s 256 CrPC. The Hon'ble High Court after taking into account judgements rendered by Division Bench of Hon'ble High Court had held that the revision was not maintainable. In that case the Ld. Addl. Sessions Judge, had even after observing that the revision was not maintainable, took the view that powers under section 397 CrPC can be exercised. The complaint was ordered to be restored. It was held by the Ld. Addl. Sessions Judge that there was an illegality and defect in procedure. Against the order of the Ld. Addl. Sessions Judge, the accused had filed the petition u/s 482 CrPC and the Hon'ble High Court had set aside the order of the Ld. Addl. Sessions Judge. It was held that only an appeal was maintainable. 12 This very view was taken by the Hon'ble High Court in Kalpna Vs Sneh Lata 2003, Crl. L.J. 3395. 13 The argument that the accused had not appeared, Distt. Judge/ASJ, ND Abhishek Choudhary Vs State Page No. 4 of 6 5 therefore, the judgement is distinguishable on facts, is of no consequence in view of language of section 256 CrPC. 14 Section 256 CrPC reads as under: "256. Nonappearance 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 the 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 subsection (1) shall, so far as may be, apply also to cases where the non appearance of the complainant is due to his death."
15 It does not require appearance of the accused. It only Distt. Judge/ASJ, ND Abhishek Choudhary Vs State Page No. 5 of 6 6 requires that "the summons has been issued on complaint." 16 Admittedly, the summons were ordered to be issued against the accused(respondents).
17 In the entire revision petition illegality or infirmity in the impugned order has not been pointed out. 18 Now, wrong notation of the date of hearing per se does not make the order of dismissal of complaint in default, an illegal order.
19 Viewed from any angle, the revision is not maintainable before this court. The revision is accordingly dismissed. 20 File be consigned to RR.
Announced in open court
on dated 27/9/2011 (H.S.SHARMA)
DISTRICT JUDGE/ASJ
NEW DELHI
All pages signed.
Distt. Judge/ASJ, ND
Abhishek Choudhary Vs State Page No. 6 of 6