The order dismissing the complaint for default or non-prosecution does not touch upon the factual or legal merits of the complaint: The High Court of Delhi
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. The aforesaid has been established in the case of Hindustan Domestic Oil & Gas Company (Bombay) Limited & Ors. Vs. State & Anr. and has laid the premise for the Delhi High Court to be followed in the instant case of Manpreet Kaur & Anr. v. Vinod Bansal [CRL.M.C. 669/2021 & CRL.M.A. 3272/2021 (Stay)] which was decided by a single judge bench comprising Justice Subramonium Prasad on 14th June 2021.
The facts of the case are as follows. 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. The complaint was listed hearing on 18th April 2017 but die to non-appearance of the complainant the complaint kept on being adjourned to further dates and was finally dismissed on 16th May 2018.
The respondent herein then filed a revision petition under Section 397 of CrPC and a plea for restoration of his complaint. The reasoning he provided for non-appearance was that due to his involvement in some cases regarding some property and financial transactions he was absconding fearing arrest. The said revision petition was accompanied by an application for condonation of delay. 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 and hence the complaint was restored in exchange of a payment of Rs. 5000 to be made to DLSA. The present petition under Section 482 Cr.P.C was directed against the order passed by the Principal District & Sessions Judge.
It was contended by the counsel for the petitioner that there was a delay of more than 575 days in filing Criminal Revision. He stated 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 therefore contends that out of 575 days delay there is no explanation forthcoming from the respondent herein for a delay of 485 days.
The court conducted an in depth perusal of the facts, the circumstances, the arguments presented and the Negotiable Instruments Act to arrive on a particular decision. The court once again relied on the aforementioned judgement in the case of Hindustan Domestic Oil & Gas Company (Bombay) Limited & Ors. Vs. State & Anr. And was of the opinion that “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. 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. ”
Hence, the petition was dismissed.