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2009 DIGILAW 873 (DEL)

RAVI SHARMA v. STATE (NCT OF DELHI)

2009-08-11

V.K.SHALI

body2009
Judgment V.K. SHALI, J. (oral) 1. This is a petition under Section 482 of the Cr.P.C. filed by the petitioner Ravi Sharma against the order dated 9th May, 2007 passed by Ms.Mamta Sehgal, the then learned ASJ, New Delhi in Criminal Revision No.38/2007 titled Sumer Rana Vs. Ravi Sharma. 2. By virtue of the impugned order, the learned Sessions Judge had set aside the order dated 28.2.2007 passed by Sh.Rajesh Kr.Singh the then learned MM dismissing the complaint of Sumer Rana for non-appearance and acquitting the accused and directing the parties to appear before the learned Magistrate on 16.5.2007. 3. Briefly stated the facts of the case are that the respondent/Sumer Rana filed three complaints under Section 138 of the Negotiable Instruments Act (hereinafter referred to as the Act) which were assigned to the Court of Sh.Rajesh Kumar Singh, learned MM, New Delhi. 4. It is stated that during the course of proceedings, two complaint cases were fixed on 25.4.2007 while as the third one got adjourned to 28.2.2007. 5. It is alleged that the respondent/complainant Sumer Rana remained under the impression that all the three cases were listed on the same date and he did not appear in Court on 28.2.2007 as a consequence of which the learned MM relied upon Section 256 of Cr.P.C. and dismissed the complaint on the ground of non-appearance and acquitted the accused/petitioner. 6. The respondent/complainant having learnt about the factum of dismissal of one of his complaint filed a Crl. Revision No.38/2007 against the order dated 28.2.2007 in which without giving an opportunity of hearing, the learned Sessions Judge set aside the order of dismissal and acquittal, which was passed in favour of the petitioner/accused and directed the parties to appear before the learned MM on 16.5.2007. The learned ASJ in passing the impugned order relied upon the note reported as 2007 Cri.I J (NOC) 187 (DEL) titled M/s Digitronics Infosys Pvt. Ltd. Vs. Devender Sahni & Anr. wherein an order of dismissal of complaint was set aside and the complaint under Section 138 of the Act was restored. 7. The petitioner feeling aggrieved by the said order of restoration has chosen to file the present petition under Section 482 Cr.P.C. 8. I have heard the learned counsel for the petitioner as well as the learned counsel for the respondent/complainant. 9. 7. The petitioner feeling aggrieved by the said order of restoration has chosen to file the present petition under Section 482 Cr.P.C. 8. I have heard the learned counsel for the petitioner as well as the learned counsel for the respondent/complainant. 9. The main contention of the learned counsel for the petitioner is that once an order of dismissal of the complaint on account of non-appearance of the complainant is passed under Section 256 of the Cr.P.C. by the learned Magistrate, it results in acquittal of the petitioner and the only remedy available to the respondent against the said order of acquittal was to prefer an appeal in terms of Section 378 of the Cr.P.C. It was contended that the said appeal against the acquittal would lie only to the High Court. 10. The learned counsel for the petitioner in order to support his submissions has relied upon the judgment titled as Kalpana Tyagi Vs. Sneh Lata Sharma 2003(2) JCC (NI) 129, T.Azeerur Rahman & Co. Vs. Super Supplies 2007 (3) JCC 302 (NI) and R.P.G. Transmission Ltd. Vs. Sakura Seimitsu (I) Ltd. & Ors. 2005 (119) DLT 393 . 11. As against this, the learned counsel for the respondent /complainant has contended that the dismissal of the complaint was only on account of non-appearance of the complainant and therefore, the said complaint ought to be revived. To support his submissions he relied upon the note on cases reported as 2007 Cri. I J (NOC) 187 (DEL) titled M/s Digitronics Infosys Pvt. Ltd. Vs. Devender Sahni & Anr. It was also urged by the learned counsel for the respondent that he had made an oral request to the learned Sessions Judge to treat the revision as an appeal. Although this fact of treating the revision as an appeal is not recorded in the impugned order and that is how the order of restoration of the complaint was passed. 12. I have considered the respective submissions. The contention of the learned counsel that the request of the respondent/complainant to treat the revision as an appeal was considered by the learned Sessions Judge is without any merit for the reasons that the appeal in a complaint case of acquittal would lie only to the High Court and not to the Sessions Court. The contention of the learned counsel that the request of the respondent/complainant to treat the revision as an appeal was considered by the learned Sessions Judge is without any merit for the reasons that the appeal in a complaint case of acquittal would lie only to the High Court and not to the Sessions Court. Secondly, even if it is assumed that the learned Sessions Judge had treated the revision of the petitioner as an appeal then this fact is not recorded in the impugned order, therefore, this argument advanced by the learned counsel for the respondent only seems to be an afterthought. 13. So far as the reliance by the Court of Sessions on the note on cases is concerned, this cannot be treated as a precedent as the facts of the said case are not given in the note on cases and they are not treated as a judicial precedents. As against this, there are three authorities of the learned Single Judge giving the detailed facts holding that a case where the complainant is absent and the complaint is dismissed under Section 256 Cr.P.C., it results in statutory acquittal of the accused. If there is an acquittal of an accused the only remedy which is available to the respondent /complainant is to file an appeal against the acquittal as envisaged under Section 378 (4) of Cr.P.C. Moreover, in the present case, the learned counsel for the petitioner has urged that even the notices were not served on him by the learned Sessions Judge therefore, that also tentamounted to passing of an order in violation of principles of natural justice. 14. For the reasons mentioned above, the impugned order dated 09.5.2007 is not sustainable in the eyes of law. Accordingly, the same is set aside. However, the respondent shall be free to file an appeal against the acquittal order and if done so within one month from today, the same shall be considered by the Court in case the petitioner is able to furnish a reasonable ground seeking condonation of delay. 15. With these observations, the petition is disposed of.