9911796707
TMI Blog2021 (6) TMI 519X X X X Extracts X X X X X X X X Extracts X X X X ..... re were insufficient funds on the date when the cheque was presented it amounts to an offence under Section 138 of the N.I. Act. When no prejudice has been caused to the petitioners herein by restoring the complaint to its original number it does not lie in the mouth of the petitioners to raise objections/pleadings that there was a delay on behalf of the complainant in filing a petition under Section 397 Cr.P.C for restoration of complaint which has been dismissed on non-appearance of the complainant at a pre-evidence stage. The present petition is completely bereft of bonafides and merits. It is apparent that the petitioners do not want to contest the case on merits - The petitioners herein had yet not been summoned and as held by the D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent herein and the matter was adjourned to 07.07.2017. On 07.07.2017 again due to non appearance of the complainant/respondent herein the matter was adjourned for 11.01.2018. On 11.01.2018, the lawyers were abstaining from work and there was no appearance on behalf of the complainant/respondent herein and the matter was adjourned to 16.05.2018. On 16.05.2018, the complaint was dismissed for nonappearance of the complainant/respondent herein. c) The respondent herein filed a revision petition on 18.09.2020, being Criminal Revision No.79/2020, under Section 397 Cr.P.C for setting aside the order dated 16.05.2018 and for restoration of the complaint. The said revision petition was accompanied by an application for condonation of de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before the Ld. MIV either in person or through his counsel. e) 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. The learned Principal District Sessions Judge placed reliance on a Division Bench judgment of this Court in CRL.M.C. 1737/2011, titled Hindustan Domestic Oil Gas Company (Bombay) Limited Ors. Vs. State Anr., wherein the Division Bench held that 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 suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay of 485 days. 5. The impugned order has, in great detail, recorded the facts of the case. The impugned order relies on the Division Bench judgment of this Court in CRL.M.C. 1737/2011, titled Hindustan Domestic Oil Gas Company (Bombay) Limited Ors. Vs. State Anr. The portion of the order of the Division Bench, which though has been quoted by the learned Principal District Sessions Judge is being quoted again as it is binding on this Court. The said Order reads as under: 21. The decision of Delhi High Court in J.K. International (supra) [(2002) DLT 795] is clearly distinguishable. In the said case, the complaint was dismissed in default and for non-prosecution as the complainant was not present and the process fee had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e complaint will not require notice to the opposite side when examined in a revision petition. Such orders are not prejudicial to the other side as they do not reflect and take into consideration merits and demerits of the allegations. When a revision petition is filed against an order dismissing a complaint for non-prosecution or in default, and the same is allowed, it is not an order that causes prejudice to the opposite side, if there is no application of mind or reflection on merits whatsoever. The distinction and aspect has to be kept in mind. (Emphasis supplied) 6. The petitioners herein have given a cheque to the respondent and that cheque has been dishonoured. Section 139 of the Negotiable Instruments Act (hereinafter refe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dishonoured with endorsement Payment stopped by drawer and there were insufficient funds on the date when the cheque was presented it amounts to an offence under Section 138 of the N.I. Act. 8. When no prejudice has been caused to the petitioners herein by restoring the complaint to its original number it does not lie in the mouth of the petitioners to raise objections/pleadings that there was a delay on behalf of the complainant in filing a petition under Section 397 Cr.P.C for restoration of complaint which has been dismissed on non-appearance of the complainant at a pre-evidence stage. The present petition is completely bereft of bonafides and merits. It is apparent that the petitioners do not want to contest the case on merits. It ..... X X X X Extracts X X X X X X X X Extracts X X X X
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