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* IN THE HIGH COURT OF DELIII AT NEW DELHI
CRL.L.P. T3T/2011
MITTIIAN LAL MARKETING LTD ..... Petitioner
Through: Mr. Arun Kumar, Advocate.
VETSUS
MEDIFIX PACKAGING INDUSTRIE S
Thlough: None.
' 30.08.2011
Crl.
M.A. No. 2962i201l(Delav)
For the reasons stated in the application, the delay in filing of the appcal is condoned.
Application is disposed of.
CRL.L.P. 131/2011 f)espite Passover, none is present on behalf of the Respondent.
Learned counsel for the Petitioner states that the learned Trial Courl has enoneously passed the order dated 25th Octob er,2010 dismissing the complaint of the Petitioner. The reason stated is non-appearance and disrnissal in default whereas the Petitioner was present along with his counsel on the said date.
For the reasons stated in the petition, the leave to appeal is granted.
Petition stands disposed of.
Crl.L.P. 131/201 I Page I of 4
2011:DHC:7530
Crl. Appeat No. //01 /20L1(To be numbered)
ORDER
1. Registry is directed to number the appeal.
2. The Appellant Company had filed a complaint under Section 138 of the Negotiable Instrument Act, 1881. During the pendency of the complaint the Complainant was regularly appearing before the Court. Vide order dated 12tl' February, 2008 this Hon'ble Court directed that the name of accused No. 4 Mrs. Sunita Vijay Deshpande be deleted. The complaint case filed by the Petitioner company was last transferred from the court of Ms. Twinkle Wadhwa, learned Metropolitan Magistrate, Tis Flazari Court, Delhi to the Court of Sh. Rakesh Kumar Nigam, learned Metropolitan Magistrate (Central). The Appellant was ordered to appear before the transferee court on 25th October,
2010. It is stated that the cause list of Sh. Rakesh Kumar Nigam, learned Metropolitan Magishate showed that the said complaint was listed at Sl. NO. 55. The Appellant along with his counsel appeared before the learned Metropolitan Magistrate, learned counsel for the accused No. I was also present on that date. The learned Metropolitan Magistrate was pleased to direct personal appearance of the accused No. 1 and issued non-bailable wan'ants against accused nos. 2 and 3. The complaint was then adjourned to 2nd F'ebruary, 201r. on 2nd February,2011 also the Appellant along with his counsel was present before the court when accused no. 1 along with his counsel Crl.L.P. 131/2011 were also present. Learned Presiding Officer was on leave and the coutt was presided by the learned Link Magistrate. It is further stated that however, the cause list of the said date that is, 2nd February, 201 1 did not list the case of the Appellant. 'fhe counsels for the Appellant and accused no. I made inquiries and. after much effort it was revealed that the complaint case filed had been consigned to the record room.
3. Thereafter the Appellant filed an application on 2nd Februuy,2071 for recalling the filc from the record room before the learned Magistrate Stui Rakesh Kumar. The application was fixed for hearing on 7th February, 2011 and the same was disrnissed by the leamed Presiding Officer stating that his Court had no jurisdiction to restore the complaint.
4. 'fhe counsel for the Appellant inspected the case file on 14tr' February, 2011 and it was for the first time on that date the Appellant learnt the reasons for dismissal of the complaint on 25th October, 2010. As per the impugned order the learned Metropolitan Magistrate dismissed the cornplaint as the complainant was not present and due to his non-appearance the accused was acquitted of the charges in the complaint.
5. Learned counsel for the Appellant contends that even the cause list dated 25th October, 2010 maintained by the learned Trial Court mentioned 2nd February, 20II against itern no. 55 however, the word 'RR' was also found Crl.L.P. I3I/201I written. Thus the same is self-contradictory. It is further stated that befole disrnissing the complaint the court even did not issue notice to the Appellant and on inspection of the court case file it was revealed that the process filed since after 12tl' September,2009 were not on court record. From the perusal of record, the noting of the Learned Metropolitan Magistrate that none appeared on behalf of the Appellant is wrong. Both the Appellant and his counsel were present on the said date and had submitted the process fee. 6..fhe order dated 25tl' October, 2010 dismissing the Complaint Case NO. 3520/2010 is set aside. The complaint is restored to its original position.
7. Appeal stands disposed of.
8. The parties will appear before the learned Trial Court on 30th September,
2011. W!/fD> MUKTA GUPTA.
J. AUGUST 30, 2011 tvn'