31b9b3b94ba6c37d7983186e867acdbd4a6dfe90b0468f1f0fe38d5ed03a0482

1. Appellant had filed a complaint under Section 138 of the Negotiable Instruments Act, 1881 (for short hereinafter referred to as "the Act") against the respondent before Metropolitan Magistrate, Delhi. After recording pre-summoning evidence, respondent had been summoned.

2. After service of notice respondent appeared in the court and was released on bail. Notice was served upon him on 20u' March, 2OlO and case was listed for complainant's evidence on 13th M.y, 20ro.

3. It appears that before the said date complaint case was transferred from Karkardooma Courts to Dwarka Courts pursuant to an administrative order of this court. Thereafter, case was taken:,;| 2011:DHC:7343 up by the Metropolitan Magistrate, Dwarka on 24th M.y, 2OIO, l7th July, 2OLO and 3l"t AugUst, 2010. Since no one appeared on behalf of the Appellant before the Metropolitan Magistrate on these dates, complaint was dismissed for non-prosecution on 31.t August, 2OIO and respondent was acquitted.

4. Learned counsel for the Appellant has contended that after the case was transferred to Dwarka Courts efforts were made by him to find out the transferee court, which was assigned the case, at Dwarka courts. In the month of August, 2010, Appellant came to know that case had been assigned to the court of Sh. N.K. Kashyap, Special Metropolitan Magistrate, Delhi. On enquiry from the court staff, counsel came to know that matter was listed on 17tt'July,2OLO and had been adjourned to 3'd September,2OIO. Accordingly, counsel noted the next date of hearing as 3.d September, 2010 in his diary. However, on 3'a September, 2OIO, when counsel reached the Court, he did not find the case listed. On enquiry, he came to know that matter had been listed on 31st August, 2OLO and was dismissed in default. Photocopy of case diary of the counsel has been annexed with this Appeal.

5. In my view, plea taken by the appellant is probable in the facts of this case, more so, when case had been transferred from t ( (. I one court to other alongwith several other cases, in view of the administrative order. Earlier the case was pendin.g in the court of Metropolitan Magistrate, Karkardooma Courts, where appellant had been pursuing the matter diligently. Subsequently, the case was transferred to Dwarka Courts. For the reasons mentioned above there is every probability of counsel loosing track of the case. Keeping in mind totality of the circumstances, I am of the view that non-appearance of the Appellant cannot be termed as intentional and willful.

6. For the foregoing reasons, impugned order is set aside and the complaint is restored, subject to cost of t10,000 /- to be paid to the respondent by the Appellant. Both the parties shall appear before the concerned court on 18th February, 2OII. Thereafter, learned Metropolitan Magistrate shall proceed with the complaint case in accordance with Iaw.

7. Appeal is disposed of in the above terms. A.K. PATHAK, J. JANUARY L[8],20tI rb / a