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Judgment
S.K. Agarwal, J.—This petition u/s 482 of the Code of Criminal Procedure, 1973 (for short ''Cr.P.C.'') is directed against the judgment and order dated 13.8.2001 passed by the court of Metropolitan Magistrate dismissing petitioner''s complaint u/s 138 of Negotiable Instruments Act in default, for non-appearance of the complainant and declining to restore the same.
Facts in brief are that appellant filed a complaint u/s 138 of Negotiable Instruments Act against respondents. The respondents were summoned. On 13.8.2001, the complaint was dismissed for non-appearance of the complainant and for the failure of petitioner to file the process fee. The order reads as under:-
"13.8.2001
Present: None. No P.F. filed again. There is a continuous default. It appears that complainant is no more interested. Hence dismissed. Consigned to record."
Petitioner''s application for restoration of the complaint was also dismissed by the trial court vide orders dated 13.9.2001.
On 8.5.2002 it was noted that summons on the complaint were already issued and on the day appointed for the appearance of the accused, the complainant did not appear. Consequently, complaint was dismissed. Thus, the dismissal of the complaint would be u/s 256, Cr.P.C., Therefore, only a petition for Special Leave to Appeal u/s 378(4) Cr.P.C. would be maintainable, as held by the Apex Court in Meera Sripat Admane Vs. Chief Officer, Sangamner Municipal Council & Ors. 2001 (3) Cri 156 , and by this Court in Mata Din & Ors. Vs. Ram Babu & Anr. 1986 C C C 95 and Krishna Kumar Gupta Vs. Mohammed Jaros & Anr. 2003 (2) JCC 179.
By orders dated 19.8.2002 passed by Hon''ble Mr. Justice M.A. Khan, Registry was directed to treat the petition as an appeal. It appears that petitioner did not take necessary steps. Notices for service on the respondents were issued. None has been appearing on behalf of respondents despite notices. Chapter 3 Part B of the Rules and Orders of the Delhi High Court deals with Jurisdiction of a Single Judge and of Benches of the Court. The Explanation (ii) to Clause (xix) of Rule 1 provides that the preliminary hearing for admission of an application for grant of special leave to appeal under sub-clause (aa) shall be before a Bench of two Judges. The relevant rule and the Explanation read as under:
Cases ordinarily to be heard by a Single Judge.
Subject to the provisos hereinafter set forth the following classes of cases shall ordinarily be heard and disposed of by a Judge sitting alone:-
(i) to (xviii) xxxxxxxx
(xix) (a) xxxxxxxx
(aa) an application by the complainant u/s 417(3) (378 of Cr.P.C. 1973) of the Code, for the grant of special leave to appeal from an order of acquittal;
(b) to (e) xxxxxxxxx
Explanation.- Preliminary hearings for admission of -
(i) xxxxxxxx
(ii) an application for grant of special leave to appeal under sub-clause (aa); and
(iii) xxxxxxxx
shall be before a Bench of two Judges.
Thus, a petition by the complainant for special leave to appeal against the order of dismissal of complaint should be listed before the Division Bench for preliminary hearing. Large number of petitions of similar nature are being listed for admission before the Single Benches. Registrar General may issue necessary instructions to the Registry in this regard. In the alternative, the said Rule be got amended.
In view of the above, subject to the orders of the Hon''ble Chief Justice, let this petition be listed before the Division Bench for further orders, on 29.9.2003. Paper books be filed.