(May 25, 2001) 2002 (TLS)126378

2002-DLT-96-795 :: 2002-AD (Del)-4-211

J K INTERNATIONAL Vs. state of delhi

S. K. Agarwal

( 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. and 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:-

"none for complainant. Complainant is not attending the court for the last three dates. Dismissed in default for non-prosecution. File be consigned to the record room. Sd/- the petitioner has challenged the above order dismissing the complaint in default. When the above petition came up for hearing, learned counsel for the petitioner argued that since the complaint was dismissed without summoning the accused persons therefore, notice to the accused persons was not necessary. They were not even impleaded as respondents. Reliance was placed on the decision of this court in Glaxie plywood Industries (P) Ltd vs. Shri Vijay Kumar 2000 VII ad (Delhi) 819. Petitioner was directed to file amended memo of parties impleading the accused persons mentioned in the complaint as parties and to file copy of the complaint. Initially notice was issued to the State. Learned counsel for the State, at the outset raised a preliminary objection that notice to the accused persons mentioned in the complaint was essential. It was felt that the question: whether in the petition challenging the order dismissing the compliant in default, at the pre-summoning stage, notice to the accused persons is necessary or not, was likely to arise in several cases, therefore, Sh. D C Mathur, Sr. Advocate was appointed amicus curiae to render necessary assistance. I have heard learned counsel for the parties and have been taken through the record. Sh. D C Mathur, learned senior counsel argued that the accused person has no right to participate in the proceedings during the enquiry under Section 202 Code of Criminal Procedure, at the pre-summoning stage; that the complaint at the pre-summoning stage could be dismissed under section 203 code of Criminal Procedure; that the accused was not discharged; and that while exercising revisional jurisdiction the court on examination of the record under section 398 Code of Criminal Procedure or otherwise, can only direct the concerned court