VINAY KUMAR Vs. STATE OF U P

JUDGEMENT

(1.) Aggrieved by the order dated 25-4-2005 passed by Additional Sessions Judge, Court No. 1, Muzaffarnagar in Criminal Revision No. 146 of 2004, Sanjay Kumar Dixit v. Sugandha Steel and others, the revisionist has filed the present revision. By the impugned order dated 25-4-2005 the Lower Revisional Court had allowed the revision filed by Sanjay Kumar Dixit, complainant and had set aside the order dated 5-2-2004 passed by Additional Chief Judicial Magistrate, 1st Muzaffarnagar in Criminal Complaint Case No. 282/9 of 2002. By the order dated 5-2-2004 Additional Chief Judicial Magistrate, 1st Muzaffarnagar has dismissed in default the complaint of Sanjay Kumar Dixit complainant under Section 138 of the N.I. Act. The grievance of the present revisionist Vinay Kumar in the instant revision is that the order passed by the Lower Revisional Court is contrary to the provision of Section 256, Cr.P.C. and therefore, should be set aside. Before examining the said contention of Sri Dharmen-dra Singhal, learned counsel for the revisionist the resume of facts are referred to below.

(2.) Respondent No. 2, Sanjay Kumar Dixit filed Complaint Case No. 282/09 of 2002 in the Court of Additional Chief Judicial Magistrate, 1st Muzaffarnagar under Section 138 of the N.I. Act, hereinafter referred to as the N.I. Act, against Sugandha Steel, Vinay Kumar (revisionist), Ravindra Kumar and Sri Ravi Khanna on 25-1-2002. The allegations in the complaint were that the Sugandha Steel was a registered firm of which Vinay Kumar, Ravindra Kumar and Ravi Khanna were partners and proprietors. They use to run and supervise the said firm. The accused persons, on various dates and at different times had taken loan from the complainant Sanjay Kumar Dixit for the satisfaction of which they had issued cheque No. 0016794 of Union Bank of India from Account No. CC-131 of an amount of Rs. Four lacs seventy thousand (Rs. 470000/-) on 20-10- 2001. The aforesaid cheque was deposited by the complainant on 12-12-2001 in Ganga Markentile Urban Co-operative Bank Limited, Muzaffarnagar in his account A-C/ 1314 on 12-12-2001 for encashment. The aforesaid cheque was returned on 13-12-2001 to the complainant with endorsement payment stop by the drawer, and hence, the said cheque was dishonoured. Complainant then gave a notice to the accused through his counsel on 24-12-2001 but the accused did not pay him the money as was demanded through the said notice in spite of the fact that they had received the notice. Vinay Kumar and Ravindra Kumar gave a false reply to the complainant of his said notice on 7-1-2002 and refused to pay him the money.

(3.) Complainant filed a complaint under Section 138 of the N.I. Act in the Court of A.C.J.M., 1st, Muzaffarnagar. Complainant examined himself on 29-7-2002 under Section 200, Cr.P.C. and also filed documents in support of his case. A.C.J.M., 1st, Muzaffarnagar summoned Sugandha Steel, Vinay Kumar and Ravi Khanna for offence under Section 138 of the N.I. Act under Section 204, Cr.P.C. vide order dated 19-9-2002 and directed the complainant to take steps under Section 204(2) and (4) within seven days fixing 4-10-2002 for appearance of the accused. The order sheet of the case (annexure No. 4 as well as annexure CA1) indicated that accused Ravi Khanna appeared in the Court on 20-1-2003 and was bailed out on that very day. Other dates fixed in the case were 25-1-2003. 21-3-2003, 16-5-2003, 16-6-2003, 2-7-2003, 31-7-2003, 1- 9-2003, 6 10-2003, 3-11-2003, 6-12-2003, 16-1-2004 and 31-1-2004 but nothing material happened. On 5-2-2004 when the case was called out nobody from either side was present in Court and hence, A.C.J.M., 1st, Muzaffarnagar ordered that the case be again called at 3 p.m. When the case was again called out at 3.00 p.m. nobody from rival sides was present nor any exemption application was filed on behalf of the complainant or the accused and hence the trial Court dismissed the complaint in absence of both, the parties and ordered the record to be consigned to the record room.