Final Order 8

Order Details: COPY OF JUDGMENT
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IN THE COURT OF SHRI PUNEET PAHWA,
ADDITIONAL SESSIONS JUDGE (SPECIAL JUDGE NDPS),
NORTH EAST DISTRICT, KARKARDOOMA COURTS,
DELHI
CRIMINAL REVISION NO. 2/2026
CNR NO. DLNE01-000014-2026
MUSARRAF HUSAIN
S/o Late Sh. Musavvar Husain
R/o H. No. C-93, Gali No.01,
Moonga Nagar, Karawal Nagar,
Delhi-110094
........ Petitioner
Vs.
MR. MOHAMMAD ZAREEF
S/o Sh. Chidden Hussain
R/o H. No. A-42, Gali No. 2,
Chand Bagh, District North-East,
Delhi-110094
Also at:
R/o H. No. 218, Gali No. 5,
Khasra No. 385, Rajiv Gandhi Nagar,
New Mustafabad, District North-East,
Delhi-110094
.......Respondent
Date of Institution of Revision Petition : 06.01.2026
Date of Completion of Arguments : 09.04.2026
Date of Order : 21.04.2026
ORDER
1. This revision is directed against the impugned order
dated 27.09.2025, passed by the court of Sh. Aakash
Mohan Singh, Ld. JMFC(NI Act), Digital Court, North-
East, Karkardooma Courts, Delhi, passed in Complaint
Case NI Act No. 1601/2023, vide which the Ld. Trial court
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was pleased to dismiss the complaint filed on behalf of the
complainant/petitioner herein.
2. Feeling aggrieved with the said order dated
27.09.2025, the petitioner herein has filed the present
revision petition alongwith an application u/s. 5 of the
Limitation Act.
3. Notice of the application u/s. 5 of the Limitation Act
as well as the petition was issued to the respondent
/accused, which was received back unserved.
4. The record of the Trial Court requisitioned and
perused.
5. I have heard arguments advanced by Ld. Counsel for
the petitioner and perused the Ld. Trial Court record.
6. Perusal of the Ld. Trial Court record shows that the
respondent remained unserved before the Ld. Trial Court
also. Therefore, service of notice upon the respondent in
the present revision petition is dispensed with. So far as
application u/s. 5 of the Limitation Act is concerned, as
per the record, there is delay of only one day in filing of
the present appeal. Admittedly, the present petition was to
be filed on or before 26.12.2025, however, the courts were
closed from 27.12.2025 to 02.01.2026 and the present
petition was filed immediately on reopening i.e. on
03.01.2026. Thus, considering that there is only one day’s
delay in filing of the present revision petition, the
application u/s. 5 of the Limitation Act is allowed and one
day’s delay in filing of the present petition is condoned.
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7. Ld. Counsel for the petitioner has submitted that he
had filed a complaint u/s. 138 NI Act against the accused
therein, as the accused had agreed to refund a sum of
Rs.10,00,000/-, as he had failed to execute sale deed and
hand over possession of a flat and in discharge of his
liability, the accused had issued a post dated cheque for an
amount of Rs.10,00,000/- in favour of the complainant and
on presentation, the said cheque was returned unpaid and
dishonoured. During trial, summons were issued to the
accused on many occasions, but same remained unserved.
Complainant was given opportunities to file fresh address
of the accused, but, the complainant failed to do so.
Thereafter, vide impugned order dated 27.09.2025, the Ld.
Trial Court was pleased to dismiss the complaint filed by
the complainant, for non-prosecution.
8. Ld. Counsel for the petitioner has further submitted
that the Ld. Trial Court committed error in dismissing the
complaint u/s. 138 NI Act instead of adjourning the matter
sine die till the whereabouts of the accused could be
traced. The Ld. Trial Court failed to properly appreciate
the affidavit filed by the complainant regarding
untraceable status of the accused and committed grave
error in holding that no useful purpose would be served by
keeping the matter pending, whereas, the law mandates
that the proceedings u/s. 138 NI Act should not be
frustrated merely due to temporary non-traceability of the
accused.
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9. Ld. Counsel for the petitioner has further submitted
that the impugned order passed by the Ld. Trial Court is
illegal, unlawful and contrary to the principles of natural
justice, being based on mere surmises and conjectures,
thus, the same is liable to be set aside and prayed that the
impugned order dated 27.09.2025 may be set aside.
10. I have given thoughtful consideration to the
submissions made by the Ld. Counsel for the petitioner
and perused the record.
11. Bare perusal of the Ld. Trial Court record shows
that the Ld. Trial Court took cognizance of the offence u/s.
138 NI Act on 08.02.2024 and the matter was fixed for
appearance of the accused for 16.05.2024. On 16.05.2024,
summons issued to the accused received back unserved
with report that no such person lived at the given address.
The complainant was given an opportunity to file fresh
address of the accused alongwith the affidavit of physical
verification and the matter was fixed for 20.09.2024. On
20.09.2024, no one had appeared on behalf of the parties
and the matter was fixed for 23.12.2024 for appearance of
the accused. On 23.12.2024, the complainant had filed an
affidavit to the effect that he had physically verified that
the accused had left both the given addresses and the fresh
address of the accused was not traceable. However, the
complainant was given another opportunity to file fresh
address of the accused alongwith the affidavit of physical
verification and the matter was fixed for 21.05.2025. On
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21.05.2025, one more opportunity was given to the
complainant and matter was fixed for 13.08.2025 for
appearance of the accused. Thereafter, vide impugned
order dated 27.09.2025, the complaint filed on behalf of
the complainant was dismissed by the Ld. Trail Court with
following observations:-
“Fresh address not filed till date. Complainant submits
that fresh address is untraceable and the accused be
declared a proclaimed person as he is deliberately
concealing himself from the court.
Upon inquiry, there is no material stated to be on record
which prima facie shows that the accused is deliberately
concealing himself. Perusal of record shows that
previous processes were unserved on the furnished
address.
It is settled law that a person cannot be declared a
proclaimed person as long as it is not shown that the
proceedings are in his knowledge. The affidavit filed by
the complainant only imputes such an assertion without
showing a basis for the same.
Sufficient opportunity has already been granted to trace
out the fresh address of the accused. No useful purpose
would be served by keeping the matter pending on board
when the accused is admittedly untraceable.
Accordingly, present complaint stands dismissed for non
prosecution.”
12. The scope of revision is to set right a patent defect
or an error of jurisdiction or law or the perversity which
has crept in the proceeding; (State of Rajasthan Vs.
Fatehkaran Mehdu, AIR 2017 SC 796). The revisional
court is empowered to call for and examine the records of
the Trial court for the purposes of satisfying itself as to the
legality and regularity of any proceedings or order made in
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a case. Object of this provision is to set right a patent
defect or an error of jurisdiction or law; (Amit Kapoor Vs.
Ramesh Chander, (2012) 9 SCC 460).
13. It has been held by the Hon’ble Supreme Court in
catena of judgments that the endeavour of courts should be
to decide the cases on merits and not to dismiss the same
on hyper-technical grounds.
14. In Shreenath & Anr. Vs. Rajesh & Ors., AIR 1998
SC 1827, it was held:
“In interpreting any procedural law, where more
than one interpretation is possible, the one which
curtails the procedure without eluding the justice is
to be adopted. The procedural law is always
subservient to and is in aid to justice. Any
interpretation which eludes or frustrates the recipient
of justice is not to be followed”.
15. It is now well settled that the rules of procedure are
intended to be a handmaid to the administration of justice
and they must, therefore, be construed liberally and in such
manner as to render the enforcement of substantive rights
effective; so far as possible, no proceedings in a court of
law should be allowed to be defeated on mere
technicalities. Meaning thereby, a “hyper-technical view”
should be avoided by the court.
16. Bare perusal of the Ld. Trial Court Record shows
that the complainant/petitioner did his best efforts to trace
out the accused/respondent and merely because, he was
unable to find out the current whereabouts of the
respondent/accused, he cannot be faulted for the same.
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Further, it is worth noticing that on 08.02.2024, Ld. Trial
Court had taken cognizance of the offence u/s. 138 NI Act.
It goes without saying that service of legal demand notice
upon the drawer of cheque is one of the essential
conditions for constituting an offence u/s. 138 NI Act.
Now, the fact that Ld. Trial Court had taken cognizance of
the offence u/s. 138 NI Act shows that Ld. Trial Court was
prima faice satisfied about service of legal demand notice
upon the accused or atleast it was sent at the correct
address of the accused. Moreover, the petitioner/
complainant had even filed an affidavit on record
specifically mentioning that the address furnished by the
petitioner/complainant was the last known address of the
accused. Under these circumstances, the petitioner/
complainant had done all he could do and since, he was
regularly following/pursuing the complaint, the complaint
was not liable to be dismissed for non-prosecution.
17. No doubt, accused was not traceable and his current
whereabouts were not known, and no purpose would have
been served by keeping the complaint pending and taking
it up on board after regular intervals, however, if the Ld.
Trial Court was not satisfied in proceeding further u/s. 82
of CrPC against the accused, the complaint could have
been adjourned sine die with direction to get it revived as
and when the whereabouts of the accused /respondent are
known to the petitioner/complainant. This should have
been better course of action, as the present complaint was
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filed u/s. 138 NI Act, in which, various steps are to be
taken within time as prescribed under the law, before a
complaint can be filed and once, the time lapses, the
complaint becomes non-maintainable and in case, the
complaint is dismissed for non-prosecution and if in
future, the complainant is able to trace out the whereabouts
of the respondent/accused, then if the complaint is
dismissed for non-prosecution, he would not be able to get
it revived or file a fresh complaint and would have become
remediless which situation cannot be envisaged under any
law. Therefore, in the interest of justice and so as to avoid
any such situation, where the complainant remains
remediless, the impugned order is set aside and the matter
is remanded back to the Ld. Trial Court Record to hear the
complainant afresh and to pass appropriate orders as per
law.
18. Accordingly, the present revision petition stands
allowed. The complaint case stands restored and revived to
it’s original number.
19. Revision file be consigned to Record Room, after
due compliance.
20. Record of Ld. Trial Court is also ordered to be
returned with attested copy of this order.
Announced in the open court
on 21st day of April, 2026.
(PUNEET PAHWA)
Addl. Sessions Judge/Special Judge (NDPS)
North-East District Karkardooma Courts, Delhi
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