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Judgment
Vibhu Bakhru, J
The petitioner has filed the present petition, inter alia, impugning the order dated 25.05.2016, whereby his representation for seeking transfer from
Central Jail Tihar, Delhi to Central Jail, (Srinagar), appeal against the common order dated 21.02.2015 passed by the Learned MM (N.I. Act), South-
East, Saket Courts, Delhi whereby the complaints filed by the petitioner company under Section 138 of the Negotiable Instruments Act, 1881 (NI Act)
against respondent no.2 were dismissed due to non-appearance and non-prosecution on behalf of the petitioner company.
The petitioner alleges that in the year 2010, it had advanced a loan of Rs. 55,000,000/- to respondent no.2, which was payable in 365 days or on
demand along with interest at the rate of 15% per annum. Respondent no.2 had mortgaged her property bearing Flat No. 54, Block C, Kailash
Apartment, Lala Lajpat Rai Road, New Delhi -110048 by depositing the title deed of the said property with the petitioner company. Respondent no.2,
in discharge of her liability towards the abovementioned loan, issued three cheques in favour of the petitioner company â€" cheque bearing no. 048267
for a sum of Rs. 11,50,000/- dated 31.05.2013; cheque bearing no. 500376 for a sum of Rs. 4,48,376/- dated 13.06.2014; and cheque bearing no.
cheque bearing no. 048265 for a sum of Rs. 55,00,000/-.
On 30.07.2013, the abovementioned cheques were presented through HDFC Bank Ltd. and were dishonoured. The cheques were returned by a
memo dated 30.07.2013, indicating the reason for dishonour as ‘insufficient funds’. On 08.08.2013, the petitioner company issued a demand
notice dated 08.08.2013 to respondent no.2, calling upon her to pay the cheque amounts. However, no amount was paid by respondent no.2.
On 12.09.2013, the petitioner company filed three complaints under Section 138 of the NI Act before the CMM, Saket Courts, against respondent
no.2 â€" CC No. 1230/1, CC No.1231/1 and CC No. 1232/1.
The said complaints were listed before the Learned MM on 17.12.2014. On that date, the Court noted that the accused (respondent no.2 herein)
was not appearing since many dates of hearing and thus, issued NBWs against respondent no.2. Thereafter, respondent no.2 filed an application for
cancellation of NBWs, which was allowed by the Learned MM on 05.02.2015 and the NBWs were cancelled subject to the fine ofR s. 5,000/-. The
petitioner remained unrepresented on that date (that is, 05.02.2015) and the matter was relisted on 21.02.2015.
On 21.02.2015, respondent no.2 was admitted to bail on furnishing a sum of Rs. 20,000/-with one surety in the like amount. However, none
appeared on behalf of the petitioner company and hence, the learned MM dismissed the complaints for non-prosecution and non-appearance.
The petitioner company states that the non-appearance on behalf of the complainant was due to an inadvertent error on part of its counsel in
incorrectly noting the next date of hearing as ‘05.03.2015’ instead of ‘05.02.2015’ and hence, the complaints ought not to be dismissed.
The petitioner company filed a criminal revision petition bearing No. 21/2015 before the Sessions Judge, Saket Court, New Delhi challenging the
common order dated 21.05.2015 (the order impugned herein), whereby all three complaints by the petitioner company had been dismissed for non-
appearance.
On 26.09.2016, the District and Sessions Judge noted that since the accused had been summoned by the Ld. MM and the dismissal of the appeal
amounts to an acquittal in a complaint case, the maintainability of the present revision was doubtful. However, an opportunity was given to the counsel
to make submissions on the said question on the next date of hearing. On 24.10.2016, the counsel for the petitioner company withdrew the said
revision petition with liberty to file an appeal before the appropriate court.
Thereafter, the petitioner company filed the present petitions seeking leave to appeal against the order dated 21.02.2015, before this Court.
The learned counsel appearing for respondent no.2 had resisted the present petitions on three fronts. First, she submitted that the aforementioned
petitions read as appeals against the order dated 21.02.2015 and as such, were not maintainable because this Court has not granted any leave to file
any such appeals. She drew the attention of this Court to the relief sought in the present petitions in support of her contention. Second, she submitted
that the aforementioned petitions were hopelessly barred by limitation and there was no ground to condone the delay. Third, she submitted that the
order dated 21.02.2015 discharged respondent no.2 under Section 256 of the CrPC and the same could not be considered as an order of acquittal.
Consequently, an appeal under Section 378 of the CrPC was not maintainable against such an order.
At the outset, it is necessary to observe that the record clearly indicates that the petitioner has been pursuing the complaints diligently. The
explanation provided by the petitioner for not being represented before the Trial Court on 05.02.2015 and 21.02.2015 is persuasive. The counsel for
the petitioner had incorrectly noted the next date of hearing as 05.03.2015 instead of 05.02.2015 and therefore, the petitioner remained unrepresented
before the Trial Court on two occasions, that is, on 05.02.2015 and 21.02.2015.
The petitioner had filed the revision petition against an order dated 21.02.2015 and the said revision petition remained pending before the learned
ASJ for a considerable period of time till it was suggested that the said petition may not be maintainable as an order of discharge was akin to an order
of acquittal. Consequently, the said petition was withdrawn on 21.04.2016 with liberty to file an appeal before an appropriate court.
The present petitions were filed on 23.01.2017. The same were also accompanied by applications under Section 378(3) of the CrPC read with
Section 482 of the CrPC, seeking leave to file appeals. The learned counsel appearing for respondent no.2 is correct that an appeal could not be filed
without seeking special leave to appeal under Section 378(4) of the CrPC. Further, the caption of the applications seeking leave to appeal are also
erroneous inasmuch as, the petitioner has captioned those as applications under Section 378 (3) of the CrPC. However, it is well settled that the
Courts would examine the substance in preference over form and therefore, this Court is unable to accept that the present petitions should be
dismissed only for the reasons that they are defective in their form. The petitioner ought to have styled the present petitions as application for leave to
appeal. However, this Court does not consider it apposite to dismiss the present petitions on this ground.
This Court is also of the view that the petitioner has adequately explained the delay in filing the present petitions. The petitioner has been pursuing
an incorrect remedy and on the same being pointed out by the learned ASJ, the petitioner had examined the same and thereafter, had voluntarily
withdrawn the revision petitions with liberty to approach the appropriate court. In the given circumstances, this Court considers it apposite to condone
the delay in filing the present petitions.
The contention that the present petition is not maintainable as the impugned order dated 21.02.2019 is not an order of acquittal, is also
unpersuasive. In Yudhvir Singh v. Nagmani Financial Services (P) Ltd.: 2003 (108) DLT 142, the Coordinate Bench of this Court had considered the
case where the complaint was dismissed as a consequence of the failure on the part of complainant to appear. The Court had observed that “the
dismissal of the complaint would be under Section 256, CrPC, therefore, only a petition for Special Leave to Appeal under Section 378(4), CrPC
would be maintainable.â€
In Subhash Chand v. State (Delhi Administration): (2013) 2 SCC 17, the Supreme Court had concluded that “that a complainant can file an
application for special leave to appeal against an order of acquittal of any kind only to the High Court.†The expression “an order of acquittal of
any kind†is of a wide import and would encompass even an order of discharge under Section 256 of the CrPC. Although such an order is not passed
under Section 255 of the CrPC it, nonetheless, has an effect of acquitting the accused.
In Becton Dickinson India Ltd. v. Shika Pharma (P) Ltd.: 2009 (6) AD (Delhi) 16,8 this Court had held that an order of the learned MM
dismissing a complaint in default would have the effect of acquitting the accused and a petition under Section 378 (4) of CrPC seeking leave to appeal
against the said decision is maintainable. However, in that case, the Court rejected the appeal on merits.
In Ravi Sharma (Sh.) v. State (NCT of Delhi) & Anr.: 2009 IX AD (Delhi) 56,6 the Court had accepted the contention of the learned counsel for
the petitioner that the only remedy available to the complainant against an order passed under Section 256 of the CrPC would be to prefer an appeal
before the High Court under Section 378 of the CrPC
Considering the above, the petitioner is granted leave to appeal against an impugned order dated 21.02.2015. The Registry is directed to renumber
the present petitions as appeals.
CRL. A. ____/2020 (to be numbered)
CRL. A. ____/2020 (to be numbered)
CRL. A. ____/2020 (to be numbered)
The learned MM had passed the impugned order dated 21.02.2015 on an assumption that the petitioner was not interested in pursuing the
complaints. It is not disputed that the petitioner had been diligently pursuing the complaints since their institution. However, the complainant remained
unrepresented on two occasions â€" 05.02.2015 and 21.02.2015. This has been adequately explained by the petitioner: the petitioner’s counsel has
incorrectly noted down the next date of hearing as 05.03.2015 instead of 05.02.2015.
The learned counsel appearing for respondent no.2 had submitted that the petitioner had filed the process fee on 17.12.2014 and in the said
process, had correctly mentioned the next date of hearing as 05.02.2015 and therefore, the explanation that the petitioner’s counsel had noted
down an incorrect date in its diary ought not to be accepted. Whilst it is correct that the petitioner’s counsel had filed the process fee mentioning
the correct date; the petitioner has explained that the said process fees were filed on 17.12.2014, that is, the date on which the learned MM had
directed non-bailable warrants (NBWs) to be issued against the accused. The learned counsel appearing for the petitioner had contended that while
the counsel had correctly filed the process fee on that date, he had erred in noting an incorrect date in his diary. A photocopy of the relevant pages of
the counsel’s diary have also been placed before this Court.
This Court is of the view that the said explanation provided by the learned counsel for the petitioner ought not to be rejected. This is considering
that the petitioner has been diligently pursuing its complaint and had promptly filed the process fee for issuance of NBWs as well.
In view of the above, the present appeals are allowed and the complaints are restored on the board of the concerned MM at the same position as
obtaining on 21.02.2015.
The concerned parties are directed to appear before the concerned MM on 24.02.2020.