ANANT RAJ AGENCIES v. SENIOR BUILDER & ORS

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 of the 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 ^^last 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 part ofthe appellant had been recorded and the matter had been fixed for final hearing on 25.03.2017. On that date, the Presiding Officer was on leave and the order sheet indicates that none was present for the complainant (appellant). He states that the appellant's counsel was present on that date, however, his appearance was not recorded. He submits that on that date, the appellant's counsel had incorrectly noted down the next date of hearing as 06.07.2017. However, the matter was directed to put up on 29.04.2017.

4. Since a wrong date was noted, none was present on behalf of the appellant on 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 counsel appearing for the respondent submits V > thatthe complaints filed by the appellant are an abuse ofthe process oflaw. He states thatthe appellant had already filed another complaint with regard to the same transaction and the said case had resulted in conviction ofthe respondent.He also statesthat against aloan of^1 crore,the respondent has already paid asum of?1.85 crores.

6. There may be merit in the contention advanced on behalf of the respondent.However,that is notthe 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 thatthe appellanthad been pursuing the matter from the year

2007. There were several occasions when the appellant was represented through its authorized representative or the counsel butthe matter had to be deferred on accountofabsence 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 Registry is directed to renumber the present petitions as appeals.

9. The pending applications are also disposed of. Crl. A;Crl.A;andCrl.A \ft^obenumbered)

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