IN THE COURT OF MS [ENTITY] DISTRICT & SESSIONS JUDGE SOUTH EAST : SAKET COURT, NEW DELHI. Cr. REVISION NO. 764/2019 M/S INDUSIND BANK LTD. THROUGH MR. TANWEER ANWAR (AUTHORIZED REPRESENTATIVE) FIRST FLOOR, HOUSE NO. 499 KOHAT ENCLAVE, KOHAT CHBS LTD. SOCIETY PITAMPURA, NEW DELHI110034 REVISIONIST VERSUS DILIP KUMAR H. NO. 19, OLD PANCHVATI, BHATIA MODE, GHAZIABAD201002 RESPONDENT Date of filing : 16.11.2019 First date before this court : 18.11.2019 Date of Decision : 12.12.2019 APPEARANCE : Shri [ENTITY], learned counsel for revisionist JUDGMENT
1. This revision under [SECTION] [ACT] has been filed against the order dated 13.09.2019 vide which the complaint under [SECTION] [ACT] filed by the revisionist, has [PRECEDENT] Page 1 of 5 pages M/s [ENTITY] vs [ENTITY] been dismissed in default.
2. It is submitted in the petition that criminal complaint under [SECTION] [ACT] was filed against the respondents in respect of dishonour of cheque. The matter was listed before the learned MM on 29.06.2018 and the matter was adjourned for 27.10.2018 for presummoning evidence. The matter was then adjourned for 25.01.2019 for producing the original specific power of attorney. The matter was adjourned on 25.01.2019 as the learned Presiding Officer was on leave. The case was then transferred to the court of Shri [ENTITY], learned [ACT] for 21.05.2019 but the counsel appeared late and the matter had already been adjourned. He wrongly noted the date as 18.09.2019 instead of 13.09.2019 on account of which none could appear before the learned MM on 13.09.2019 and the case was dismissed on default.
3. To support his assertion, the learned counsel has placed copy of his diary and also the emails indicating the complainant about the adjourned date as 18.09.2019.It is submitted that non appearance was neither intentional nor deliberate. A prayer is made that the impugned order may be set aside and the complaint be restored to its original number.
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4. The respondent was directed to be served but the notice was received back unserved.
5. I have heard the submissions and perused the record. My observations are as under :
6. In [PRECEDENT], it was observed that an order dismissing the complaint for nonprosecution 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 which are procedural and substantive orders. [[PRECEDENT]]. It was thus held that an order dismissing the complaint in default or nonprosecution did not touch upon factual or legal merits of the complaint. It is a reflection on or about the conduct of the complainant in proceedings before the Court and the opinion formed by Court about said conduct. Such orders if they did not reflect and take into consideration merits of the case or complaint, would not require notice to the opposite side when examined in a revision petition. Such orders are not prejudicial to other side as they did not reflect and take into [PRECEDENT] Page 3 of 5 pages M/s [ENTITY] vs [ENTITY] consideration merits and demerits of the allegations. When a revision petition is filed against an order dismissing a complaint for nonprosecution or in default and same is allowed, it is not an order that causes prejudice to opposite side, as there was no application of mind or reflection on merits whatsoever. This distinction has to be thus, kept in mind.
7. In view of the law mentioned above, no notice is required to be served upon the respondent.
8. The perusal of the record shows that the complainant / revisionist had been appearing and pursuing his case diligently. The case got transferred to the court of Shri [ENTITY], learned MM on 21.05.2019 and the order sheet reflects that none appeared on behalf of the complainant. The explanation has been given by the revisionist that by the time he appeared, the matter has already been adjourned. However, he wrongly noted the date as 18.09.2019 instead of 13.09.2019. This fact is fully corroborated by the document namely case diary and emails that had been placed on record on behalf of the revisionist. It is shown that none appearance of the revisionist or his counsel on 13.09.2019 was neither intentional nor deliberate. It is also evident that he had been pursuing the matter diligently.
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9. Considering the explanation given and also that the respondent is yet to be summoned before the trial court, no prejudice would be caused to any party if the revision is allowed and the complaint is restored to its original number.
10. The revision petition is allowed and the complaint is restored to its original number subject to cost of Rs.1,000/ to be deposited online with www.bharatkeveer.gov.in, the website of the Ministry of Home Affairs of the Government of India. Revisionist to appear before the court of learned CMM on 20.12.2019 at 2.00 pm since the trial court has been abolished, for further orders.
11. A copy of this judgment along with Trial Court Record be sent back to the learned trial court.
12. Revision file be consigned to record room.
Announced in the open court on this 12th day of December 2019 ([ENTITY]) District & Sessions Judge South East, Saket Courts New Delhi [PRECEDENT] Page 5 of 5 pages M/s [ENTITY] vs [ENTITY]