J K INTERNATIONAL Vs. STATE

JUDGEMENT

(1.) Admit. This petition under section 482 Code of Criminal Procedure (for short, Code of Criminal Procedure) is directed against the order dated 12/03/1999 passed by the court of Metropolitan Magistrate, New Delhi dismissing in default the complaint of the petitioner no.141/96 titled "J K International vs. SKG Solvex Ltd. & Ors. (hereinafter, the complainant).

(2.) Brief facts are: that the petitioner filed two complaints against M/s.SKG Solvex Limited and others under section 138 of Negotiable Instruments Act, 1882 on the same date. In the above complaint it was alleged that cheque for Rs.4 lacs dated 30/07/1996 drawn on State Bank of Indore, Bombay issued in favour of the petitioner was returned unpaid for the reason "payment stopped by the drawer". The Magistrate started enquiry to find out whether there is sufficient ground to proceed. These complaints were listed together for hearing on 20th September, 1996, 5/12/1996, 13/02/1997, 3/04/1997, 8/05/1997 and on 10/10/1997. On the last date petitioner examined CW-1, S C Arora, General Manager (Legal) and authorised representative of the complainant company, in both the complaints separately, who proved the cheque Ex. CW-1/C1, legal notice Ex.CW-1/D and AD Card Ex.CW-1/E. On 14/10/1997, it appears that the complaint in question was adjourned to 6/04/1998 and other complaint was adjourned for 7/04/1998. None appeared in the complaint listed on 6-4-1998, as well as on the next date fixed and the same was dismissed in default on 12-3-1999. However, petitioner/complainant continued to appear in the other complaint which was listed on 7/04/1998 and on several dates fixed thereafter. Ultimately on 31.10.2000, accused persons were summoned. It was only thereafter, the petitioner/complainant came to know that one of the complaints filed by him was dismissed in default on 12.3.99 with the following order:-

(3.) The above view, was reiterated by the apex court in Dr. S S Khanna vs. The Chief Secretary. Patna & Anr. AIR 1983 SC 595.Under Section 203 Cr.PC if after considering the statements of the complainant, the witnesses and the result of the inquiry or investigation (if any), the Magistrate is of the opinion, that there is no sufficient ground for proceeding, he shall dismiss the complaint by a speaking order. There is no specific provision in the Code of Criminal Procedure, for dismissal of the complaint in,default, for non-appearance of the complainant, at the pre-summoning stage. Sections 256 and 249 Code of Criminal Procedure, provide for dismissal of the complaint, during the trial, for non-appearance of the complainant, in summons trial and warrant trial cases respectively. In my view, on the same analogy the power 'to dismiss the complaint at the pre-summoning stage for non-appearance, of the complainant, has to be read in section 203 Code of Criminal Procedure However, in this case it is not disputed that the complaint was dismissed in default, at the pre-summoning stage, under section 203 Code of Criminal Procedure Further there is also no dispute that while exercising revisional powers under Section 398 Code of Criminal Procedure, against the order, dismissing the complaint under section 203 Code of Criminal Procedure, Sessions Court or the High Court can direct the concerned court for further enquiry into the complaint.