Sandeep Singh v. Sarda Nand Singh

1. The petitioner has filed the present petition seeking leave to appeal against the order,dated 14.11.2014 passed by the Trial Court,dismissing the complaint case filed by the petitioner(CC No.2640/2014)on account ofhis non-appearance. The Trial Court had concluded that the petitioner (complainant)was notinterested in prosecuting the case.

2. It is seen that the complainant had filed the ease in May,2012. The matter was thereafter listed for pre-summoning evidence on 08.06.2012 and thereafter, was adjourned to 23.06.2012. The matter was listed on 28.07.2012 and the complainant had tendered his evidence. The court noted that there was sufficient material on record to proceed against the accused and consequently, issued summons to the respondent and posted the matter on 30.10.2012. On that date, the respondent filed an application seeking exemption from personal appearance and the complaint case was listed on 2019:DHC:7888 02.02.2013. On 02.02.2013, the matter was directed to be posted on 21.03.2013 for framing ofnotice under Section 251 ofthe Code ofCriminal Procedure, 1973 (Cr.P.C.) and other proceedings. On 21.03.2013, the court could not take up the matter and it was posted to 24.07.2013. On 24.07.2013, the court noted that there was sufficient material on record to establish a prima facie case against the respondent. On that date, the respondent sought an adjoumment to file an application under Section 145 (2),ofthe Negotiable Instruments Act,1881(hereafter referred to as the'N.I. Act')for recalling the petitioner/complainantfor his cross-examination. The said request was allowed and the matter was posted for 11.12.2013. On this date, the respondent filed an application under Section 145 (2) ofthe N.I. Act, which was heard and allowed and the matter was put up for cross examination of the complainant on 03.06.2014. On this date, the matter was transferred to another court and listed on the same date.

3. Although the complainant/his counsel had been appearing regularly on all previous dates, however, none had appeared on behalf of the complainant on 03.06.2014 and the Trial Court adjoumed the matter to 14.11.2014 for further proceedings. Since none had appeared on 14.11.2014, the Trial Court passed the impugned order dismissing the complaintfor non-appearance.

4. It is seen that the complainant had been regularly following up the case till 03.06.2014. However, he remained unrepresented only on two occasions, that is on 03.06.2014 and 14.11.2014. As noticed above, on 03.06.2014, the matter was transferred to another court. In view of the above, the assumption that the complainant was not interested in"pursuing the complaint does not appear to be merited. -.-5

5. It is relevant to note the respondent has not resisted the appeal on merits. On 23.10.2017, the respondent was granted an opportunity to file a reply to the main appeal as well as an application for condonation ofdelay. However, no such reply has been filed despite sufficient opportunity. The learned counsel appearing for the respondent has resisted the present petition on the ground ofdelay in filing the same.

6. The petitioner has filed the additional affidavit explaining the delay in filing the present appeal. He has stated that date of14.11.2014 had been incorrectly noted by his counsel. He had, thereafter, approached his advocate for ascertaining the correct date. The advocate informed the petitioner to contact him in the first week of February, 2015 as there,was certain transfers of judicial officers and cases under the N.I. Act. The additional affidavit indicates that the petitioner had followed up the matter with his counsel who had advised the petitioner to meet him in August- September 2015. Since the petitioner did not receive any satisfactory response fi 'om his advocate, he appointed another set of advocates who traced the impugned order on the Trial Court's website on 22.10.2015. The petitioner affirmed that the certified copies ofthe orders were applied for on 23.10.2015 and received on 12.01.2016 and the present appeal was moved within a period ofone month,that is on 11.02.2016.

7. The leamed counsel, appearing for the respondent relied on the decision ofthis Courtin Fincap & Ors. V.State & Ors.: Crl.L.P. No.484to 490/2011, decided 01.02.2013, and contended that in the said case, this Court had declined to condone the delay of404 days in filing the petition. He submitted that the application seeking condonation in filing the present appeal oughtto meetthe sanle fate.He submits that in the said decision,this Courthad considered a question ofrecording an incorrect date.

8. This Court is of the view that the deeision in Fincap {supra) is of little assistance to the respondent. In that case, it was admitted that the. respondent had obtained a certified copy ofthe order impugned therein on 25.03.2011 but had filed the Leave Petition only on 21.10.2011,thatis after a gap of209 days.

9. Itis trite law that a decision is rendered on the facts ofthe case. Facts in this case are materially different. In this case, the delay in filing this appeal is much less than 404 days. Moreimportantly,there does not appear to be any delay after the petitioner had obtained certified eopies'of the impugned order,which was obtained on 12.01.2016.

10. In view ofthe above,the application for condonation of delay(Crl. M.A.No.3428/2016)in filingthe appeal is allowed.

11. Forthe reasons stated above,the leave to appeal is allowed. Crl.A. /2019(to be numbered)

12. As noticed above,this Court is unable to accept that the conduct of the appellant warrantsthe conclusionthathe is notinterested in pursuing the matter.

13. In view ofthe above,the impugned order is set aside and the matter is remanded to the Trial Court to consider it afresh. Both parties are directed to appear before the Trial Courton 23.09.2019.

14. The appeal is disposed of.

VIBHU BAKHRU,J