Mohini Kaul vs State and Another

Suresh Kait, J.

CRL.M.A.7952/2011(Exemption)

Allowed subject to all just exceptions.

CRL.M.A.7951/2011(Condonation of Delay)

For the reasons mentioned in the application, the same is allowed and the delay in filing the appeal is condoned.

CRL.M.A.7953/2011(Condonation of Delay in re-filing)

For the reasons mentioned in the application, the same is allowed and the delay in re-filing the appeal is condoned.

CRL.L.P. 287/2011

The Petitioner has assailed the order dated 06.10.2010 passed by Sh. Praveen Singh, Judge, Small Cause Court cum- Addl. Sr. Civil Judge, New Delhi, which reads as under:

16.10.2010

At 2.15PM

Present: None.

Despite several calls since morning, none on behalf of the complainant. The complaint is accordingly dismissed in default, the accused stands acquitted. File be consigned to the record room.

Praveen Singh Judge

Small Cause Court

Cum-Addl. Sr. Civil Judge

New Delhi

16.10.2011

Being aggrieved by the aforesaid order, the Petitioner filed a revision Petitioner under Sections 397/399/400 Code of Criminal Procedure, 1973 before the Sessions court wherein, the learned Additional Sessions Judge, Saket, Saket Court, New Delhi vide order dated 27.01.2011 dismissed the revision filed by the complainant being non-maintainable.

The learned Additional Sessions Judge has relied upon the case of Krisan Kumar Gupta v. Mohammed Jaros and Anr. 2003 (1) R.C.R. (Cri) 127, wherein it was held as under.

A. Code of Criminal Procedure, Section 256-negotiable Instruments Act, Section 138-Dismissal of complaint in default-It results in acquittal of accused-Appeal against acquittal would lie to High Court and non revision-Revision before Sessions Court is without jurisdiction. 1998 (1) RCR (Crl.) 309 (SC) relied on.

Therefore, the Petitioner has filed this instant petition mainly against the order dated 16.10.2010 passed by the learned Trial Judge.

I have perused the record which shows that the complaint was initially listed before the Trial Judge on 21.07.2009, on which the learned Counsel for the complainant was present, and same was the position on 16.01.2010 and 19.07.2010.

The only date on which neither the complainant nor his advocate appeared was on 16.10.2010, on which date the complaint was dismissed in default.

In my view, the learned trial court has erred in dismissing the complaint in default. At least one more opportunity should have been given to the complainant instead of dismissing the complaint. Law is very settled on this issue as was decided in Mohd. Azeem Vs. A. Venkatesh and Another, , the relevant paragraphs read as under:

From the contents of the impugned order of the High Court, we have noticed that there was one singular default in appearance on the part of the complainant. The learned Judge of the High Court observes that even on earlier dates in the course of trial, the complainant failed to examine the witnesses. But that could not be a ground to dismiss his complaint for his appearance (sic absence) on one single day. The cause shown by the complainant of his absence that he had wrongly noted the date, has not been disbelieved. It should have been held to be a valid ground for restoration of the complaint.

In our opinion, the learned Magistrate and the High Court have adopted a very strict and unjust attitude resulting in failure of justice. In our opinion, the learned Magistrate committed an error in acquitting the accused only for absence of the complainant on one day and refusing to restore the complaint when sufficient cause for the absence was shown by the complainant.

The impugned orders dated 22-6-2001 of the Metropolitan Magistrate and dated 24-7-2001 of the High Court respectively, are set aside. The complaint is restored and learned Magistrate is directed to proceed with the trial of the case after issuance of formal notices to both the parties of the next date to be fixed in the case. The learned Counsel appearing for the parties are directed to inform the parties to appear before the Court of Metropolitan Magistrate on or before 9-9-2002 to ascertain the date fixed by the trial Judge for the case.

Keeping in view the abovesaid discussion, I set aside the orders dated 16.10.2010 and 27.012011 and restore the complaint before the Trial Judge.

The Petitioner is directed to appear before the Trial Judge on 27.07.2011 and thereafter the Trial Judge shall issue notice to the Respondent.

CRL.L.P. No. 287/2011 is allowed in the above terms.