Arun Kumar Sharma vs State and Others

Manmohan, J.—Despite a pass over, none has appeared for respondent no. 2. Accordingly, this Court has no other option but to proceed

ahead with the matter. It is pertinent to mention that a Division Bench of this Court in the case of Hindustan Domestic Oil and Gas Co. (Bombay)

Limited and Others Vs. State and Another, decided on 3rd August, 2012 has held that in revision notice u/s 401(2) Cr.P.C. is not mandatory to

the respondent in case where revision has been filed challenging the order of dismissal on account of default and for non-prosecution. The relevant

portion of Hindustan Domestic Oil and Natural Gas Co. (Bombay) Ltd. and Ors. (supra) is reproduced hereinbelow:--

The decision of Delhi High Court in J.K. International (supra) 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 Hank Ltd.

vs. Central Government Industrial Tribunal and Ors. 1980 (Supp) SCC 420], which draws distinction between procedural and substantive review.

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 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.

This distinction and aspect has to he kept in mind.

Keeping in view the aforesaid judgment, in fact, no notice is required to be issued to respondents. However, it is pertinent to mention that in the

present case respondent-company has already stand served.

Moreover, as the appellant''s criminal complaint had been dismissed in default, the leave to appeal is allowed.

Accordingly, Crl. L.P. 294/2011 stands disposed of.

Crl. A.

Registry is directed to number the appeal.

Present appeal has been filed challenging the order dated 11th February, 2011 passed by learned Metropolitan Magistrate, Saket Courts, New

Delhi whereby the appellant''s complaint being CC No. 376/1 and 606/1 u/s 138 of Negotiable Instruments Act, 1881 has been dismissed in

default on account of non-appearance of appellant on a single date.

Learned counsel for the appellant states that non-appearance was unintentional, inadvertent and on account of transfer of matter from Patiala

House Courts to Saket Courts. She states that appellant was expecting a notice from the concerned Court but since no notice was served upon

him, appellant had not appeared on the said date of hearing.

Having heard learned counsel for the appellant, this Court is of the view that as the matter has been dismissed in default for non-appearance on

a single date and that too without notice to the appellant despite transfer of jurisdiction from Patiala House Courts to Saket Courts, the impugned

order needs to be set aside. Accordingly, present appeal is allowed. The impugned order dated 11th February, 2011 is set aside and CC No.

376/1 and 606/1 is restored to its original position.

Appellant is directed to appear before ACMM, Saket Courts on 26th September, 2012 who shall list the matter before concerned

Metropolitan Magistrate. Needless to say, the Metropolitan Magistrate would continue with the proceedings after summoning the respondents.

With the aforesaid observations, present appeal stand; disposed of.