Final Order 2

Order Details: COPY OF ORDER
Pdf Text: IN THE COURT OF SHRI ARVIND BANSAL:
ADDL. SESSIONS JUDGE – 05 (SHAHDARA DISTRICT)
KARKARDOOMA COURTS : DELHI
CNR NO. DLSH010009202024
Criminal Revision No. 42/2024
PS Seemapuri
Rajeev Aggwarwal
S/o Lt. Sh. R. S. Aggarwal
R/o H. No. A8, Surya Nagar,
Ghaziabad, Uttar Pradesh,
Office at :
A5/6, Jhilmil Industrial Area,
Delhi110095.
....... Revisionist
Vs.
1. Neha Jain
W/o Sh. Alok Jain,
Partner & Authorized Signatory,
M/s Cool Bird Enterprises,
R/o 1803, Apex Acacia Velly,
Sector3, Vaishali, Ghaziabad,
Uttar Pradesh.
2. Alok Jain (witness)
S/o Not Known
Partner & Authorized Signatory,
M/s Cool Bird Enterprises,
R/o 1803, Apex Acacia Velly,
Sector3, Vaishali, Ghaziabad,
Uttar Pradesh.
Office at : 302, Rohit House,
Tolstoy Marg, Cannaught Place,
New Delhi.
3. Vinay Jain
S/o Not Known,
Office & R/o 30D,
Sector11, SIDCUL,
Haridwar, Uttrakhand,
Crl. Revision No. 422024
Rajeev Aggarwal Vs. Neha Jain & Ors
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4. M/s Cool Bird Enterprises (through its partners)
R/o 1803, Apex Acacia Velly,
Sector3, Vaishali, Ghaziabad,
Uttar Pradesh.
...... Respondents
Date of institution : 12.02.2024
Date of reserving order : Not Reserved
Date of order : 12.02.2024
O R D E R
1. Vide this order, Court shall decide one revision petition
filed by revisionist/complainant Rajeev Aggarwal, challenging the
order dated 16.09.2023 passed by Court of Ld. MM06, Shahdara,
Karkardooma Courts, Delhi, dismissing the complaint case bearing
no. 2063/2018 titled as “RAJEEV AGGARWAL Vs. NEHA JAIN
AND ORS”, in default for nonprosecution.
2. The succinct facts leading to the filing of complaint case
under Section 420/467/468/471/120B/34 IPC by revisionist are as
follows: that on 15.02.2016 an agreement was executed between the
revisionist and respondents for purchasing a property bearing no. 30
D, Sector011, SIDCUL, Hardiwar, Uttarakhand for a total sale
consideration of Rs. 1,20,00,000/; that uptil June 2016, revisionist
paid Rs. 13,01,000/ through bank transfers; that on 12.12.2017, it
came to the knowledge of revisionist that respondents had sold the
propertyinquestion to someone else and refused to return the amount
of revisionist thereby cheating him; that on 14/15.12.2017 a police
complaint was preferred by the revisionist against the respondents,
however, no action was taken and thereafter, an application u/s 156(3)
Cr.P.C. was filed by the revisionist/complainant and the same was
Crl. Revision No. 422024
Rajeev Aggarwal Vs. Neha Jain & Ors
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dismissed by the Ld. Trial Court vide order dt. 07.01.2019 and the
matter was fixed for presummoning evidence.
That on 25.03.2023, revisionist/complainant duly
appeared before the Ld. Trial Court. As the Ld. Court was on training,
matter was adjourned and next date of hearing given by the Ld. link
Court was inadvertently noted down by the revisionist/complainant as
16.01.2024. On 16.01.2024, revisionist/complainant appeared before
the Ld. Trial Court, however, came to know that the complaint case
had been dismissed vide the impugned order for nonprosecution, and
thus, the present revision petition.
3. The impugned order dt. 16.09.2023 is reproduced
herein as under:
16.09.2023.
Pr: None for complainant.
Matter is at the stage of PSE.
Perusal of the record reveals that last opportunity was
given to the complainant to appear before the court vide order dt.
07.12.2022. However, despite waiting none has appeared on behalfof
the complainant.
Be awaited. Put up at 12.00PM.
Aishwarya Singh Kashyap
MM – 06/SHD/KKD Courts/Delhi
At 12.00PM
Pr: Presence as above.
Be awaited. Put up at 02.00PM.
Aishwarya Singh Kashyap
MM – 06/SHD/KKD Courts/Delhi
At 02.00PM
Pr: Presence as above.
It is apparent that the complainant has lost interest in
pursuing this complaint. Hence, no purpose would be served by
keeping this matter on board as the time invested in this matter canbe
Crl. Revision No. 422024
Rajeev Aggarwal Vs. Neha Jain & Ors
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devoted to other genuine litigants. In these circumstances, this
complaint case is disposed of as dismissed on account of non
prosecution by the complainant.
File be consigned to record room as per rules.
4. It is observed that complaint case was dismissed at the
stage of presummoning itself i.e. even before the summoning of
respondents as accused in the case. Considering the said aspect as well
as the aspect that present revision petition had not been preferred on
merits of the dismissed complaint case, no notice of the present
present revision petition was served to respondents.
In this regard, Hon'ble High Court of Delhi in case titled
Manpreet Kaur vs. Vinod Bansal, MANU/D/1089/2021 decided on
14.06.2021, held that a notice is not required to be served where the
issue is only about the conduct of the party and the order for
restoration of the complaint has no reflection on the merits of the case
and therefore, no prejudice is likely to be caused to the opposite side.
The facts of the present case squarely fall within the
scope of the observations of Hon'ble Delhi High Court as quoted
above.
5. Submissions heard. Record perused.
6. It is stated by Ld. Counsel that on 25.03.2023,
revisionist/complainant came to know about the nonavailability Ld.
Presiding officer pursuant to his training and adjournment of matter;
that inadvertently revisionist/complainant noted down the next date as
16.01.2024 instead of 16.09.2023 and on 16.09.2023, Hon'ble Court
dismissed the complaint case in default. It is submitted that the
mistake of revisionist/complainant in noting down the date was
neither intentional nor deliberate.
Crl. Revision No. 422024
Rajeev Aggarwal Vs. Neha Jain & Ors
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It is argued that complainant shall suffer irreparable loss
if not granted an opportunity to pursue the complaint case. It is stated
that complaint case be restored and revisionist be granted an
opportunity to contest the matter on merits.
7. It is observed that the complaint case filed by revisionist
came to be dismissed in default at the very threshold even before he
could lead presummoning evidence. Although, revisionist could have
made better efforts to clarify the confusion and confirm the date of
hearing (16.09.2023) through ‘eCourts’ or by personally inquiring
from the Court staff, this Court is of the opinion that he must be
granted a fair opportunity to pursue his case. It is a settled principle
that all the rules of procedure are handmaid of justice and processual
law is not to be tyrant but a servant, not an obstruction but an aid to
justice (refer to Sambhaji Vs. Gangabai (2008) 17 SCC 117). It is
also settled that substantive justice must always prevail over
procedural or technical justice.
In order to grant a sufficient and fair opportunity to
pursue the matter on merits, it is hereby ordered that complaint case
bearing no. CT Cases 2063/2018 titled as “RAJEEV AGGARWAL
Vs. NEHA JAIN AND ORS” be restored to its original number,
subject to cost of Rs. 2,000/ to be deposited by
revisionist/complainant with DLSA Shahdara and the receipt be
shown in original to the Ld. Trial Court.
The impugned order dt. 16.09.2023 is hereby set
aside in aforesaid terms.
8. Revisionist/complainant is directed to appear before the
Ld. Trial Court on 16.02.2024 at 02:00 PM. It is clarified that Ld. MM
shall fix the matter for presummoning evidence as per her own
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docket and only one opportunity shall be granted for presummoning
evidence to the complainant. In case revisionist/complainant fails to
lead presummoning evidence on the date fixed by Ld. Trial Court, the
Court shall be at liberty to pass order as per law.
9. Copy of this order be sent to the Ld. Trial Court for
intimation and record.
10. Revision file be consigned to Record Room.
Announced in open Court (Arvind Bansal)
on 12.02.2024 Addl. Sessions Judge05
Shahdara District,
Karkardooma Courts,Delhi.
Crl. Revision No. 422024
Rajeev Aggarwal Vs. Neha Jain & Ors
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