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1996 SCC OnLine Del 904 : 1997 Cri LJ 1264

Delhi High Court

(BEFORE ARUN KUMAR AND K.S. GUPTA, JJ.)

Shiv Kumar … Appellant;

Versus
Mohd. Saghir and others … Respondents.
Criminal Appeal No. 142 of 1996
Decided on December 5, 1996

Page: 1265

The Judgment of the Court was delivered by

ARUN KUMAR, J.:— This appeal by special leave is directed against the judgment
dated May 20, 1996 passed by Shri Sanjay Garg, Metropolitan Magistrate, Delhi.
2. Facts giving rise to the present appeal, in brief, are that Shiv Kumar, appellant,
filed a complaint under Section 138 of the Negotiable Instruments Act against Mohd.
Saghir, respondent No. 1 and M/s. Mohd. Rafiq Mohd. Safiq & Company, respondent
No. 2, on November 11, 1991 and vide order dated July 4, 1994, both these
respondents were summoned as accused for September 9, 1994, by the trial
Magistrate. Respondent No. 1 who appeared on September 9, 1994 was admitted to
bail. On that date itself appellant, filed an application under Section 319 Cr. P.C. and
on that application Mohd. Atiq, Mohd. Abid, Mohd. Javed and Mst. Jamila Khatoon,
respondents 3 to 6 being partners of respondent No. 2, were further ordered to be
summoned as accused for March 2, 1995 by the trial Magistrate vide order dated
January 16, 1995. Thereafter on February 14, 1996 respondent No. 1 put in
appearance along with Shri M.P. Singh, Advocate and the latter made a statement that
he will be producing the remaining respondents on the next date of hearing and the
case was postpone to March 27, 1996 for appearance of respondents 3 to 6. On that
date respondents 3 & 5 appeared before the trial Magistrate and they too were
admitted to bail. An application for seeking exemption was filed on behalf of
respondents 4 & 6 through counsel and the same was allowed and the case was
posted for April 22, 1996 for appearance of respondents 4 & 6. On April 22, 1996 as
respondents 4 & 6 did not appear, non-bailable warrants were ordered to be issued
against them for May 20, 1996. Thereafter on the application filed on behalf of
respondents 4 & 6 for cancellation of non-bailable warrants, the case was taken up on
April 23, 1996 and the order for issuing of non-bailable warrants against both of them
was recalled and they were admitted to bail. However, on May 20, 1996 when
respondents 1 & 3 to 6 were present and the complainant was absent the case was
ordered to be taken up again at 2 p.m. and at 2.20 p.m. following order was passed by
the trial Magistrate:
“Present: None for the complainant.
3. All the accused are present. The presence of the complainant is required as he
was supposed to supply copies of the complaint to the accused. Complaint is
dismissed in default. Accused are discharged. File be consigned to record room.”
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4. It is this order which is under challenge in this appeal.

5. Contention advanced by Shri G.D. Gandhi appearing for the appellant was two
fold. First, that the appellant mistook the next date of hearing on April 22, 1996 as
May 22, 1996 instead of May 20, 1996 and on account of that bona fide mistake
neither the appellant nor his counsel appeared on May 20, 1996 when the impugned
order was passed. In support of this contention Shri Gandhi, relies on the case diary
which is maintained by him in the normal course of his professional work besides
bringing to our notice the fact that the complaint has been pending for nearly four and
a half years and the appellant has been throughout appearing regularly before the trial
Magistrate prior to May 20, 1996. Second contention of Shri Gandhi, learned counsel
for appellant is that in view of the provision contained in Section 256, Cr. P.C. the trial
Magistrate in the circumstances of the case was not justified in dismissing the
complaint in default of appearance of the complainant.
6. In paras 6 & 7 of the memorandum of appeal the appellant has stated that he
misheard and mistook the adjourned date as May 22, 1996 and the same was
immediately got noted down by him in the counsel's diary that on appearance on May
22, 1996 in Court he came to know that the complaint was actually fixed for May 20,
1996 and was dismissed in default on that date. In support of the statement made in
the memorandum of appeal and also the application filed under Section 378(4) Cr.
P.C. appellant has filed his own affidavit dated July 25, 1996. We are thus satisfied
that the non-appearance on the part

Page: 1266

of appellant or his counsel, on May 20, 1996 was neither intentional nor can it be said
to be due to negligence. It appears to be because of bonafide mistake in hearing the
date as May 22, 1996 by the appellant and getting the same noted down in the
counsel's diary.

7. Coming to the second contention, under Section 256, Cr. P.C. dismissal of a
complaint for non-appearance is one of the options given to the Magistrate. He has
other options too. He has the discretion to adjourn the hearing of the case to some
other date. He has also the discretion to dispense with the attendance of the
complainant and proceed with the complaint. When a statute vests various options
with the Magistrate, it is necessary that, the option which he adopts should be
exercised judicially and to advance the cause of justice. At the cost of repetition it may
be noted that’ after the order dated January 16, 1995 was passed on the appellant's
application, filed under Section 319 Cr. P.C. to summon respondents 3 to 6 also as
accused being partners of the firm respondent No. 2, Shri M.P. Singh, Advocate, on
February 14, 1996 understood to produce them on the next date of hearing and when
despite that undertaking and allowing of application for seeking’ exemption from
appearance filed on behalf of respondents 4 & 6 on March 27, 1996, they did not
appear on April 22, 1996 non-bailable warrants were ordered to be issued against
them for may 20, 1996. However, at the back of the appellant an application was filed
by respondents 4 & 6 on April 23, 1996 for recalling the order dated April 22, 1996 for
issue of non-bailable warrants against them and on that application that order was
recalled and after admitting them to bail, the case was adjourned for further
proceeding to May 20, 1996. As the complaint was fixed for further proceedings on
May 20, 1996 vide order dated April 23,.1996, a better and more judicious approach
on the part of the trial Magistrate would have been to adjourn the case instead of
dismissing it in default on May 20, 1996. He should not have taken the absence of the
appellant on that date as a short-cut for disposal of the case. It may further be noticed
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that in the impugned order it has been stated that a copy of the complaint is to be
supplied to the accused by the appellant. Sub-section (3), of Section 204 Cr. P.C.
provides that in a proceeding instituted upon a complaint made in writing every
summons or warrant issued under sub-section (.1) shall be accompanied by a copy of
such complaint. Therefore, the respondents must have received the copy of the
complaint, with the summons issued to them. Further record of the trial Court goes to
show that some of the respondents have challenged the order of summoning by filing
revision petitions before the Sessions Judge, Delhi implying thereby that they must be
having the copies of complaint with them. Be that as it may, even if technically copies
of the complaint were to be supplied to the respondents, in the background of said
facts the trial Magistrate was not right in exercising the discretion in dismissing the
complaint in default in terms of the order dated May 20, 1996.
8. For the foregoing discussion, the appeal is accepted and the impugned order
dated May 20, 1996 is set aside. The complaint is restored to the stage at which it was
dismissed in default and the trial Magistrate is directed to proceed further on the
complaint of the appellant in accordance with law. Parties are directed to appear
before him on December 16, 1996.
9. During the course of arguments it was brought to our notice that the criminal
revision filed by some of the respondents against the order of summoning was
dismissed in default by an Additional Sessions Judge and as the complaint itself had
been dismissed in default in the meanwhile, aggrieved respondents did not pursue the
restoration of that criminal revision. It was urged that the time gap resulting due to
dismissal of the complaint itself in default should not be taken against the,
respondents in the matter of restoration of their criminal revision. We are sure that the
learned Additional Session Judge will take all relevant facts into consideration while
disposing of the application for restoration of the criminal revision.:
10. Appeal allowed.
———
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