Sudhir Kumar Jain v. Dheeraj Lamba

1. This is an appeal under Section 378 Cr.P.C. filed by the appellant challenging the order dated 14th February, 2007 passed by the learned Metropolitan Magistrate in CC No.99/2001 titled as Sudhir Kumar Jain vs. Dheeraj Lamba whereby the complaint was dismissed in default for non-appearance.

2. It is the case of the appellant that a complaint under Section 138 of Negotiable Instruments Act was filed by him against the respondent which was pending before learned Metropolitan Magistrate. He was regular and diligently pursuing the matter in the Court. On 7th April, 2006, the case was transferred from Tis Hazari Courts to Rohini Court and after coming to know regarding the transfer of the case, he went to 2014:DHC:4622 Rohini Court but by that time, the matter was adjourned for 14th February, 2007 and the presence of the appellant could not be recorded. On 14th February, 2007, the appellant could not appear before the Court at the time when the case was called because he was attending the Court of Sh. Lokesh Kumar Sharma, MM, and Sh. M.K.Gupta, ADJ at Tis Hazari Courts where two of his cases were listed on that date. His counsel had assured him to attend this matter. When the appellant reached the Court at 12:05 pm, he came to know that the complaint has been dismissed at 11:35 pm for non-appearance. A revision petition was filed before the District Judge which was withdrawn being not maintainable. It was submitted that non-appearance of the appellant was neither intentional nor deliberate but due to the aforesaid reasons. As such, the impugned order be set aside and the criminal complaint be restored to its original number.

3. Leave to appeal was granted and notice was issued to the respondent.

4. I have heard the appellant in person and Sh. Basant Kumar Singh, Advocate for the respondent.

5. The appellant has reiterated the averments made in the grounds of appeal during the course of his submissions. He further submitted that he should not be made to suffer on account of negligence of his counsel who failed to attend the Court despite assurance given to him.

6. Learned counsel for the respondent, however, submitted that the respondent has been harassed by the petitioner, inasmuch as, although the complaint was filed in the year 2004 it could not reach its logical conclusion till date. Due to non-appearance of the complainant, the same was dismissed. He also referred to the conduct of the appellant during the pendency of the present appeal for showing that even appeal was dismissed twice due to his non-appearance. As such, it was submitted that there is no sufficient ground for setting aside the impugned order and the appeal be dismissed.

7. A perusal of the impugned order goes to show that the complaint was dismissed in default for non-appearance of the complainant at 11:35 pm (although it must be 11:35 am). In order to show that the appellant was prevented by sufficient cause from putting in appearance before the learned Metropolitan Magistrate, the appellant has placed on record certified copy of the order sheets to show that he had attended the court of Sh. Lokesh Kumar Sharma, Metropolitan Magistrate, Tis Hizari Courts and the court of Sh. M.K. Gupta, ADJ, Tis Hazari Courts, Delhi on 14th February, 2007. It is his case that his counsel had assured him to look after the matter pending before the Metropolitan Magistrate, however, he did not appear and when the appellant reached the Court he came to know that the complaint was dismissed in default at 11:30 am. Under the circumstances, sufficient cause has been assigned by the appellant for his non-appearance on 14th February, 2007 when the complaint was dismissed in default.

8. It is true that even during the pendency of the present appeal the appellant has not been very vigilant as firstly on 12th March, 2010, due to his non-appearance, the appeal was dismissed for non-prosecution. He moved an application for restoration of the appeal which was also dismissed for non-prosecution on 9th July, 2010. Thereafter he moved another application for restoration which was allowed subject to cost. However, for delay caused, the respondent can be compensated in terms of cost.

9. Keeping in view the fact that the complaint is pending since 2004 without any logical conclusion, the impugned order is set aside subject to Rs.15,000/- (Rupees Fifteen Thousand) as costs to be paid to the respondent. The appeal is allowed and the complaint is ordered to be restored to its original number and status.

10. Parties are directed to appear before the concerned Chief Metropolitan Magistrate on 13th October, 2014, who may either keep the complaint himself or assign it to the appropriate Court. Thereafter, the complaint be disposed of as expeditiously as possible preferably within four (4) months. Copy of the order along with Trial Court record be sent back immediately.

JUDGE SEPTEMBER 12, 2014 rs