INDIA SME ASSET RECONSTRUCTION COMPANY LTD. v. STATE & ORS.

1. By this appeal the Appellant challenges the order dated 11^'^ April, 2012 whereby the complaint of the Appellant was dismissed for nonprosecution.

2. Learned counsel for the Appellant submits that the Trial Court Record had been called by the learned Additional Sessions Judge on a revision filed CRL.L.P. 359/2012 ^ 3 2013:DHC:8349 by the Respondent and in view thereof the Appellant was under the impression that as and when a date is fixed before the learned Trial Court, a notice will be served and the authorized representative of the Petitioner failed to appear before the learned Trial Court.

3. Learned counsel for the Respondent contends that the reasons for nonappearance are not genuine. The Petitioner was very well aware of the dates fixed before the learned Trial Court and they had been participating in proceedings before the learned ASJ.

4. I have heard learned counsel for the parties. A perusal of the order sheet shows that none was present on behalf of the Appellant on 22"^* February 2012, 28'^ March 2012 and ll"^ April 2012 when the complaint was finally dismissed by the learned Metropolitan Magistrate. The authorized representative of the Appellant did not show due diligence in pursuing the matter resulting in the dismissal of the complaint ostensibly for the reason that the revision was pending. The authorized representative of the Appellant was bound to pursue the matter before the Trial Court though the revision was pending before the learned ASJ, however it would not be in the interest of justice to penalise the Appellant for the fault of the authorized CRL.L.P. 359/2012 ^ ^ © representative.

5. In the peculiar facts and circumstances of the case the impugned order dated ll"^ April, 2012 is set aside. The complaint is restored to its original position subject to a cost of Rs. 7000/- each to be paid to the Respondent Nos. 3, 4 & 5 i.e. Anil Bhargava, Anand Bhargava and Mukesh Bhargava on the next date of hearing before the learned Trial Court. Parties are directed to appear before the Trial Court on 16"' March, 2013.

6. Appeal is disposed of FEBRUARY 18,2013 'ga' MUKTA GUPTA, J