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2019 Supreme(Del) 1881
IN THE HIGH COURT OF DELHI AT NEW DELHI
Manoj Kumar Ohri, J.
Nitin Gupta – Appellant
Versus
Aakash Metal Industrial – Respondent
Criminal Miscellaneous Case Nos. 4320, 4326 of 2019
Decided On : 04-11-2019
Advocate Appeared:
Lokesh Patodia, Anuj Jain, Vinod Pal, I.V. Raghav.
Non-framing of formal notice under Section 251 Cr.P.C. does not vitiate trial proceedings unless it causes a failure of justice and prejudice to the accused.
Headnote:
Non-framing of formal notice under Section 251 Cr.P.C. - Negotiable Instrument Act - 138 of Negotiable Instrument Act - 251 Cr.P.C.
Fact of the Case:
The petitioner sought quashing of the order arising from a complaint under Section 138 of the Negotiable Instrument Act, contending that non-framing of formal notice under Section 251 Cr.P.C. vitiated the trial proceedings.
Finding of the Court:
The court found that non-framing of formal notice did not vitiate the trial proceedings and dismissed the revision petitions, noting the petitioner's history of delaying the trial.
Issues: The main issue was whether non-framing of formal notice under Section 251 Cr.P.C. would vitiate the trial proceedings, and the petitioner's conduct in delaying the trial.
Ratio Decidendi: The court held that non-framing of formal notice did not vitiate the trial proceedings, citing Section 251 Cr.P.C. and case law to support the position that unless there is a failure of justice and prejudice to the accused, mere technicalities should not lead to interference.
Final Decision: The court dismissed the revision petitions with costs and directed the trial court to expedite and conclude the hearing at the earliest.
JUDGMENT :
Manoj Kumar Ohri, J.
1. The present petitions have been filed under Section 482 Cr.P.C. seeking quashing of the order dated 06.05.2019 passed by the Addl. Sessions Judge, Shahdara District, Karkardooma Courts, Delhi arising out of CC No. 12358 of 2016 and CC No. 12360 of 2016 between the same parties.
2. As the parties in the above cases are common and both the petitions raise identical questions, they are taken up together for disposal.
3. The short question raised in the present petition is whether non-framing of formal notice under Section 251 Cr.P.C. would vitiate entire proceedings requiring a fresh trial?
4. Learned counsel for the petitioner/accused contended that the respondent/complainant filed the aforementioned complaint case against the petitioner under Section 138 of the Negotiable Instrument Act.
5. For the sake of felicity, the chronological list of events as noted by the revisional court in the impugned order, are reproduced below:-
2. The relevant facts for the disposal of the present revision petition are that a complaint u/s 138 of Negotiable Instrument Act, 1881 (N.I. Act) was filed against the revisionist on 30.06.2016 for dishonour of the cheque and vide order dated 14.07.2016 the accused was summoned for the offence u/s 138 N.I. Act. On 03.11.2016, the counsel for accused filed the Memorandum of appearance of the accused. On 10.11.2016 the accused was exempted and complete set of documents were given and the matter was posted for appearance and notice of the accused. On 18.11.2016 the counsel for both parties were present and they sought for referring for the Mediation Centre. On 20.12.2016 it was recorded that the mediation failed and counsel for accused sought time for filing application u/s 145 (2) N.I. Act. On 20.01.2017 no application u/s 145 (2) N.I. Act filed and therefore opportunity to cross examine the complainant witnesses was closed.
3. It is also worthwhile to mention that subsequently the similar application u/s 145(2) N.I. Act was moved which was dismissed vide order dated 25.03.2017 and the matter was posted for SA/DE. The revisionist had preferred the revision petition u/s 482 Cr.P.C against the order of Ld. ACMM whereby his right to cross-examination was closed. The same was dismissed by Hon'ble High Court of Delhi on 04.01.2018. Thereafter, the matter was listed for DE and on 05.12.2018 right to accused to lead DE was closed and matter was posted for final arguments, thereafter, the present revision petition was moved.
6. It is the case of the petitioner that the trial court did not frame any formal notice either on 20.12.2016 or 20.01.2017 when the petitioner appeared and this has vitiated the entire trial proceedings. It has been pleaded that the above fact came to knowledge of the present counsel who was recently engaged when the case was listed for final arguments.
7. I have heard learned counsels for the parties and have also gone through the case records.
8. It is relevant to note that the present case was fixed for final arguments before the trial court on 04.02.2019, when the petitioner filed a revision petition before the Sessions court impugning the order dated 20.12.2016 and 30.01.2017, seeking the following prayers:-
(a) Call for the record of complaint case pending in the court of Sh. Vijay Kumar Jha, KKD courts, Delhi titled as M/s Aakash Metal Industries vs. Nitin Gupta vide CC No. 12360/2016 and stay the proceedings in the said case till the disposal of the present petition.
(b) Examine the legality and correctness of order dated 20.12.2016 and 20.01.2017 passed by the Ld. Trial Court in case titled as M/s Aakash Metal Industries vs. Nitin Gupta vide CC No. 12360/2016.
(c) Set aside the order dated 20.12.2016 and 20.01.2017 passed by the Ld. Trial Court in case titled as M/s Aakash Metal Industries vs. Nitin Gupta vide CC No. 12360/2016 and trial court may kindly be directed to proceed with the trial afresh after framing of notice U/s 251 Cr.P.C. in the interest of Justice
