Kamaldeep v. Shailender

1. Aggrieved by the order dated 19^'' January, 2017 whereby the complaint was dismissed for non-appearance and non-execution, the petitioner seeks leave to appeal before this Court. Respondent has been served. Mr.Rohit Verma, Advocate appeared for the respondent on 9'^ April,2018 and Mr.Rahul Dubey,Advocate appeared for the respondent on 19th November, 2018 however till date neither any Vakalatnama nor any reply affidavit has been filed. Today learned counsel for the respondent appears however no Vakalatnama and reply has been filed. Having perused CRL.L.P.247/2017 page[1] of[3] 2019:DHC:7881 r the record and as the petitioner has given sufficient cause for nonappearance,this Court deems it fit to grantleave to appeal.

2. Petition is disposed of. Crl.A.No..^ /2019

1. Admit.

2. Registry is directed to number the appeal.

3. Petitioner filed a complaint under Section 138 of the Negotiable Instruments Act (in short the NI Act). The petitioner alleged that he had given a friendly loan of ?15 lakhs for return whereof the respondent had issued a cheque which on presentation was dishonoured. A perusal ofthe order sheet reveals that the complaint was preferred and was presented before Court on 7^^ April,2015 and recording the pre-summoning evidence, summons were issued to the respondent. On September, 2015, Vakalatnama on behalfofthe accused was filed. On 6'^ October,2015 when notice was required to be framed the learned Trial Metropolitan Magistrate West District transferred the case to learned CMM North West District in view ofthe Amendment Ordnance of2015. On \T^ November,2015 none appeared before the learned Metropolitan Magistrate at Rohini District Court when notice was issued to the parties. On 18"" January, 2016, learned counsel for the complainant and accused were present and the matter was renotified on 29^^ March, 2016 however thereafter none appeared for the complainants for 3 dates when notice was again issued to the complainant returnable for 19^*^ January, 2017. In the impugned order dated 19'^ November,2017 it is not noted as to whether notice had been served on the petitioner/complainant however due to non-appearance on behalf of the CRL.L.P.247/2017 2 of 3 complainant, the complaint was dismissed for non-prosecution and nonexecution.

4. The explanation rendered by the petitioner is that the earlier counsel engaged stopped appearing once the matter was transferred to the Rohini Court which fact was not informed to the petitioner. Considering the explanation rendered and the fact that prior to transfer ofthe case to Rohini, leamed counsel for the complainant/petitioner was diligently appearing,this Court deems it fit to restore the complaint to its original position subject to cost. The impugned order dated 19'^ January, 2017 dismissing Complaint Case No.140/2001 titled as Kamaldeep Vs.Shailender which was pending in the Court ofleamed Metropolitan Magistrate North Rohini court is restored to its position subject to the petitioner paying a cost of ?10,000/- to the respondent on the date before the leamed Trial Court which is fixed as 28^'' May,2019 when the petitioner/complainant with his counsel and respondent with his counsel will be presentin Court.

5. Appeal is disposed of.

6. Order dasti.