Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 14th JUNE, 2021
+ CRL.M.C. 669/2021 & CRL.M.A. 3272/2021 (Stay)
MANPREET KAUR & ANR. ..... Petitioners
Through Mr. Ritesh Khatri, Advocate
versus
VINOD BANSAL ..... Respondent
Through None
CORAM:
HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD
SUBRAMONIUM PRASAD, J.
1. The present petition under Section 482 Cr.P.C is directed against the
order dated 23.11.2020, passed by the Principal District & Sessions Judge
(North), Rohini Courts, Delhi in Criminal Revision No. 79/2020.
2. The facts, in brief, leading to the instant revision petition are as under:
a) The respondent herein filed a complaint against the dishonour
of a cheque bearing No.017595 dated 01.12.2016 drawn on Oriental
Bank of Commerce for Rs.3,50,000/-, given by the petitioners herein
as refund of security amount. The said cheque was returned with
endorsement " Payment stopped by drawer " vide return memo dated
10.01.2017. A legal notice dated 12.01.2017 was issued by the
respondent and on failure of payment of the said amount, a complaint
was filed by the respondent herein against the petitioners herein
before the learned Trial Court on 28.02.2017.
b) The material on record shows that the complaint was listed for
CRL.M.C. 669/2021 Page 1 of 8
hearing on 18.04.2017 before the learned Trial Court but there was
no appearance on behalf of the complainant/respondent herein and
the matter was adjourned to 07.07.2017. On 07.07.2017 again due to
non appearance of the complainant/respondent herein the matter was
adjourned for 11.01.2018. On 11.01.2018, the lawyers were
abstaining from work and there was no appearance on behalf of the
complainant/respondent herein and the matter was adjourned to
16.05.2018. On 16.05.2018, the complaint was dismissed for non-
appearance of the complainant/respondent herein.
c) The respondent herein filed a revision petition on 18.09.2020,
being Criminal Revision No.79/2020, under Section 397 Cr.P.C for
setting aside the order dated 16.05.2018 and for restoration of the
complaint. The said revision petition was accompanied by an
application for condonation of delay. A perusal of the
abovementioned revision petition shows that the reason given by the
complainant/respondent herein for non-appearance was that due to
his involvement in some cases regarding some property and financial
transactions he was absconding fearing arrest. It is stated that the
respondent herein was arrested on 11.02.2019 and he remained in
judicial custody till 15.05.2020. It is stated that when he was released
from custody on 15.05.2020, there was lockdown due to the outbreak
of COVID-19 pandemic. It is stated that the respondent made
enquiries regarding the proceedings in his complaint and when he
came to know of the dismissal of the complaint for non-appearance
he filed the abovementioned revision petition. It is further stated that
non-appearance of the complainant/respondent herein in the
CRL.M.C. 669/2021 Page 2 of 8
complaint case was neither deliberate nor intentional.
d) The learned Principal District & Sessions Judge vide order
dated 23.11.2020 allowed the revision petition on payment of cost of
Rs.5,000/- which was to be paid to the Delhi Legal Service
Authority. The revision petition was allowed subject to the following
conditions:
“a) That the revisionist will be allowed to conclude
pre-summoning evidence on one date given by Ld. Trial
Court and the revisionist will not seek unnecessary
adjournments, but subject to production of receipt of the
cost imposed herein above, before Ld. Trial Court.
b) That the revisionist will ensure that he will appear
regularly before the Ld. MIV either in person or through
his counsel.”
e) The learned Principal District & Sessions Judge held that the
complaint was dismissed for non-appearance of the complainant at
the pre-summoning stage and that no prejudice would be caused to
the petitioners herein if the complaint is restored back. The learned
Principal District & Sessions Judge placed reliance on a Division
Bench judgment of this Court in CRL.M.C. 1737/2011, titled
Hindustan Domestic Oil & Gas Company (Bombay) Limited & Ors.
Vs. State & Anr., wherein the Division Bench held that in pre-
summoning stage an order dismissing a complaint for non-
prosecution or in default does not touch upon the factual or legal
merits of the complaint and restoration of such petition, even without
notice to the other side, does not cause any prejudice to the opposite
side.
f) Against the order passed by the learned Principal District &
CRL.M.C. 669/2021 Page 3 of 8
Sessions Judge in Criminal Revision No.79/2020 the petitioners have
filed the instant petition.
3. Heard Mr. Ritesh Khatri, learned counsel for the petitioner and
perused the material on record.
4. Mr. Ritesh Khatri, learned counsel for the petitioners states that there
was a delay of more than 575 days in filing Criminal Revision No.79/2020.
He states that admittedly the respondent herein was arrested on 11.02.2019
and was in custody till 15.05.2020, but the complaint case was dismissed for
non-prosecution before the respondent herein was arrested on 11.02.2019.
He states that there is no reason given by the respondent herein as to why he
did not appear for the proceedings on 18.04.2017, 07.07.2017, 11.01.2018
and 16.05.2018. He states that the complaint was dismissed on 16.05.2018
and the respondent herein was arrested on 11.02.2019 but there is no reason
given by the respondent herein as to why the petition under Section 397
Cr.P.C was not filed between 16.05.2018 and 11.02.2019. He further states
the respondent herein was released from judicial custody on 15.05.2020 but
there is no reason forthcoming as to why the petition under Section 397
Cr.P.C was filed only on 18.09.2020. He therefore contends that out of 575
days‟ delay there is no explanation forthcoming from the respondent herein
for a delay of 485 days.
5. The impugned order has, in great detail, recorded the facts of the case.
The impugned order relies on the Division Bench judgment of this Court in
CRL.M.C. 1737/2011, titled Hindustan Domestic Oil & Gas Company
(Bombay) Limited & Ors. Vs. State & Anr. The portion of the order of the
Division Bench, which though has been quoted by the learned Principal
District & Sessions Judge is being quoted again as it is binding on this
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Court. The said Order reads as under:
" 21 . The decision of Delhi High Court in J.K.
International (supra) [(2002) DLT 795] is clearly
distinguishable. In the said case, the complaint was
dismissed in default and for non-prosecution as the
complainant was not present and the process fee had not
been paid. In said circumstances, it was held that Section
401 (2) would not be applicable and no notice was
required to be issued. An order dismissing the complaint
for non-prosecution or in default, which is made the
subject matter of the revision, cannot be equated with
"revision petitions" that are filed on substantive grounds
or touch on the merits. Courts have recognized difference
between orders of this nature which are procedural and
substantive orders [See Grindlays Bank Ltd. Vs. Central
Government lndustrial Tribunal and Ors., 1980 (Supp)
SCC 420, which draws distinction between procedural
and substantive review. Power of procedural review need
not be specifically conferred but power of substantive
review has to be conferred by the statute before it can be
exercised by a judicial forum/court. Power of procedural
review is inherent and, therefore, does not require any
statutory provision or conferment. A reading of Section
401(2) illuminates that power of revision should not be
exercised without notice when an order prejudicial to the
accused or other person is being passed. The order
dismissing the complaint for default or non-prosecution
does not touch upon the factual or legal merits of the
complaint. The said order is a reflection on or about the
conduct of the complainant in the proceedings before
the court and the opinion formed by the court about the
said conduct. Such orders if they do not reflect and take
into consideration the merits of the case or the
complaint will not require notice to the opposite side
when examined in a revision petition. Such orders are
not prejudicial to the other side as they do not reflect
and take into consideration merits and demerits of the
allegations. When a revision petition is filed against an
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order dismissing a complaint for non-prosecution or in
default, and the same is allowed, it is not an order that
causes prejudice to the opposite side, if there is no
application of mind or reflection on merits whatsoever.
The distinction and aspect has to be kept in mind ."
(Emphasis supplied)
6. The petitioners herein have given a cheque to the respondent and that
cheque has been dishonoured. Section 139 of the Negotiable Instruments
Act ( hereinafter referred to as „the NI Act‟) casts a presumption in favour of
the holder that it shall be presumed, unless the contrary is proved, that the
holder of a cheque received the cheque for the discharge, in whole or in part,
of any debt or other liability. Section 139 of the N.I. Act reads as under:
“ The Negotiable Instruments Act, 1881
139 . Presumption in favour of holder.—It shall be
presumed, unless the contrary is proved, that the holder
of a cheque received the cheque of the nature referred to
in section 138 for the discharge, in whole or in part, of
any debt or other liability.”
7. The purpose of introducing Section 138 of the N.I. Act was to bring
sanctity in commercial transactions. The negotiable instruments like cheques
started losing their creditability in not being honoured on presentment. The
legislature found that an action in civil court for collection of the negotiable
proceeds like a cheque was defeating the very purpose of recognizing the
negotiable instruments as speedy vehicle of commerce. The objects and
reasons for inserting Chapter XVII in the Negotiable Instruments Act was to
enhance the acceptability of cheques in settlement of liabilities by making a
drawer liable for penalties in case of bouncing of cheques due to
insufficiency of funds in the accounts or for the reasons that it exceeds the
CRL.M.C. 669/2021 Page 6 of 8
arrangements made by the drawer with adequate safeguards to prevent the
harassment of honest drawers. It is now well settled that even if the cheque
gets dishonoured with endorsement “ Payment stopped by drawer ” and there
were insufficient funds on the date when the cheque was presented it
amounts to an offence under Section 138 of the N.I. Act.
8. When no prejudice has been caused to the petitioners herein by
restoring the complaint to its original number it does not lie in the mouth of
the petitioners to raise objections/pleadings that there was a delay on behalf
of the complainant in filing a petition under Section 397 Cr.P.C for
restoration of complaint which has been dismissed on non-appearance of the
complainant at a pre-evidence stage. The present petition is completely
bereft of bonafides and merits. It is apparent that the petitioners do not want
to contest the case on merits. It was open to the petitioners to state and
demonstrate, by providing the bank account details, that there were
sufficient funds in the account when the cheque was presented to the
complainant and no offence under Section 138 of the N.I. Act was made out.
Obviously this is not the case and the petitioners are trying to get the
complaint thrown out on technicalities.
9. The complaint is maintainable in law. The petitioners herein had yet
not been summoned and as held by the Division Bench, no prejudice will be
caused to the petitioners herein if the complaint is restored. The complaint is
yet to be heard on merits. Normally no complainant would benefit by
permitting his complaint to be dismissed in default. It is not denied by the
counsel for the petitioners that the respondent was arrested on 11.02.2019
and was released only on 15.05.2020. It has been stated very candidly in the
revision petition that the respondent was apprehending arrest and was
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absconding. This has been found to be a good reason by the learned
Principal District & Sessions Judge to condone the delay of 575 days. When
the respondent was released from jail on 15.05.2020, there was a lockdown
and the revision petition was filed in September, 2020. The order of the
learned Principal District & Sessions Judge cannot be said to be so perverse
that this Court, while exercising its jurisdiction under Section 482 Cr.P.C,
should substitute its own conclusion to the one arrived at by the learned
Principal District & Sessions Judge. Costs have been imposed on the
respondent herein and the learned Principal District & Sessions Judge has
directed the respondent to conclude the pre-summoning on one date given
by the learned Trial Court and the respondent herein has been prohibited
from taking unnecessary adjournments. In view of the directions passed by
the learned Principal District & Sessions Judge, this Court is not inclined to
interfere with the order.
10. Accordingly, the petition is dismissed along with the pending
application.
SUBRAMONIUM PRASAD, J
JUNE 14, 2021
Rahul
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