ANANT RAJ AGENCIES v. SENIOR BUILDER

1. The petitioners have filed the present petitions, inter alia,impugning a common order dated 06.06.2017 passed by the Metropolitan Magistrate- 5/PHC/ND, whereby the three complaints filed by the petitioner(CC Nos. 723/1/16; 725/1/16; 726/1/2016)against the respondents under Section 138 ofthe Negotiable Instruments Act, 1881 were dismissed in default for nonappearance ofthe complainant.

2. The Trial Court had noted that the record indicated that the complainant had not been appearing for'Hast many dates". It, accordingly, inferred that the complainant was not interested in pursuing the said complaints.

3. Mr Bakshi, the learned counsel appearing for the petitioner submits that the appellant had been diligently pursuing the matter and there was no negligence on its part on prior occasions. He submits that the evidence on the partofthe appellanthad beenrecorded andthe matterhad beenfixed for final hearing on 25.03.2017.Onthatdate,thePresiding Officer wasonleave and the order sheet indicates that none was present for the complainant (appellant).He states thatthe appellant's counsel was present on that date, however,his appearance was notrecorded.He submitsthatonthatdate,the appellant's counsel had incorrectly noted down the next date ofhearing as 06.07.2017.However,the matter was directedto putup on 29.04.2017.

4. Since a wrong date was noted, none was present on behalf of the appellanton 29.04.2017.On that date,the cases were directed to be put up on 06.06.2017 and on that date i.e. 06.06.2017, the complaints were dismissed for non-appearance.

5. Mr Shrivastava,learned counselappearingforthe respondentsubmits thatthe complaints filed by the appellant are an abuse ofthe process oflaw. He states that the appellant had already filed another complaint with regard to the same transaction and the said case had resulted in conviction of the respondent.He also states that against a loan of^1 crore,the respondent has already paid a sum of?1.85 crores.

6. There may be merit in the contention advanced on behalf of the respondent. However,that is not the ground on which the learned M.M.has dismissed the complaint cases filed by the appellant. It is seen that the conclusion arrived at by the learned M.M. was that the appellant was not interested in pursuing the cases. This Court has perused the order sheets which indicate that the appellant had been pursuing the matter from the year

2007. There were several occasions when the appellant was represented through its authorized representative or the counsel but the matter had to be deferred on account ofabsence ofthe accused(the respondent herein).

7. This Court also finds no reason to disbelieve the explanation given by the learned counsel for the appellant that on 25.03.2017, he had incorrectly noted the next date ofhearing as 06.07.2017 instead of29.04.2017. In view ofthe explanation now provided,the inference drawn by the learned M.M. that the appellant was not interested in pursuing the cases appears to be erroneous.

8. In view ofthe above the present petitions are allowed and the leave to appeal is granted.The Registi^ is directed to renumber the present petitions as appeals.

9. The pending applications are also disposed of. Crl.A;Crl.A and Crl.A (To be numbered)

10. For the reasons stated above,the appeals are allowed. The impugned order is set aside. The cases are remanded to the learned M.M.to consider on merits. The cases shall proceed form the position as obtaining on 06.06.2017.

11. The parties shall appear before the concerned M.M.on 29.11.2019,at

10.30 a.m.

12. The Registry is directed to return the trial court records to the concerned Court.

VIBHU BAKHRU,J NOVEMBER 08,2019 pkv