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HIGH COURT OF DELHI
CRL.M.C. 348/2018
CRL.M.C. 348/2018
CRL.M.C. 349/2018
M/S GAHALOT FARMS PVT LTD Petitioner
Through: Mr. Gaurav Kakar, Adv.
M/S GAHALOT FARMS PVT LTD Petitioner
Through: Mr. Gaurav Kakar, Adv.
VERSUS
STATE (GOVT OF NCT OF DELHI) & ANR Respondents
Through: Mr. K.S. Ahuja, APP for the State.
Respondent no.2 in person.
Through: Mr. K.S. Ahuja, APP for the State.
Respondent no.2 in person.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
16.01.2019 The petitioner had filed at least two criminal complaint cases (CC NO. 7622/2016 and 7819/2016) against the second respondent, each alleging offence under Section 138, Negotiable Instruments Act, 1881, having been committed on account of non-payment inspite of notices of demand in the wake of dishonour of two different cheques. The complaint cases came to be dismissed on account ofnon-appearance and non-prosecution by separate but identical orders passed by the Magistrate on 10.08.2017.
These petitions have been filed invoking the inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, 1973
(Cr.P.C.) to assail the said orders seeking they to be set aside and for restoration of the criminal complaints for further proceedings in accordance with law.
16.01.2019 The petitioner had filed at least two criminal complaint cases (CC NO. 7622/2016 and 7819/2016) against the second respondent, each alleging offence under Section 138, Negotiable Instruments Act, 1881, having been committed on account of non-payment inspite of notices of demand in the wake of dishonour of two different cheques. The complaint cases came to be dismissed on account ofnon-appearance and non-prosecution by separate but identical orders passed by the Magistrate on 10.08.2017.
These petitions have been filed invoking the inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, 1973
(Cr.P.C.) to assail the said orders seeking they to be set aside and for restoration of the criminal complaints for further proceedings in accordance with law.
CRL.M.C. 348/2018 & conn. Page 1 of3
2019:DHC:7582
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The second respondent on notice, has appeared in person. He does not want to file any reply and submits that he is inclined instead to settle the dispute with the complainant i.e. the petitioner.
It is noted that the petitioner as the complainant had not appeared before the Metropolitan Magistrate on the date preceding the impugned orders on 10.08.2017. This had led to court notices being issued. By the impugned orders, the Metropolitan Magistrate seems to have assumed that, the court notices had been duly served. The copies of the reports of the process server returned to the court instead on the said court notices would reveal that the complainant could not be located at the given address and instead the process server was directed by someone to some other premises where he met a woman not known to him, she being introduced as the wife of the director of the petitioner. There is no clarity as to the identity of the said person or her authorisation. There was no tender of notice to the petitioner company or to any person connected thereto.
At the same time, there is material to show that on the same date i.e.
10.08.2017 another complaint case (CC no. 503/1/2017 - new number
3203/2017) of M/s Gahlot Farms Pvt. Ltd. described as a sister concern of the petitioner was listed before the same court on 10.08.2017. It is the contention of the petitioner that the counsel for petitioner was duly present even in these proceedings and all the matters including the sister concern were duly adjourned and it later being revealed that impugned orders were passed due to some confusion.
In the above view, the prayers in these petitions are granted. The complaint cases as aforesaid are restored on the file of the
2019:DHC:7582
•f- "
The second respondent on notice, has appeared in person. He does not want to file any reply and submits that he is inclined instead to settle the dispute with the complainant i.e. the petitioner.
It is noted that the petitioner as the complainant had not appeared before the Metropolitan Magistrate on the date preceding the impugned orders on 10.08.2017. This had led to court notices being issued. By the impugned orders, the Metropolitan Magistrate seems to have assumed that, the court notices had been duly served. The copies of the reports of the process server returned to the court instead on the said court notices would reveal that the complainant could not be located at the given address and instead the process server was directed by someone to some other premises where he met a woman not known to him, she being introduced as the wife of the director of the petitioner. There is no clarity as to the identity of the said person or her authorisation. There was no tender of notice to the petitioner company or to any person connected thereto.
At the same time, there is material to show that on the same date i.e.
10.08.2017 another complaint case (CC no. 503/1/2017 - new number
3203/2017) of M/s Gahlot Farms Pvt. Ltd. described as a sister concern of the petitioner was listed before the same court on 10.08.2017. It is the contention of the petitioner that the counsel for petitioner was duly present even in these proceedings and all the matters including the sister concern were duly adjourned and it later being revealed that impugned orders were passed due to some confusion.
In the above view, the prayers in these petitions are granted. The complaint cases as aforesaid are restored on the file of the
CRL.M. C. 348/2018 & conn. Page 2 of3
Metropolitan Magistrate which shall be taken up for further proceedings in accordance with law on 26'^ February 2019.
The parties are directed to appear before the said court accordingly. If the second respondent so desires, and is inclined, he can make a suitable prayer before the Metropolitan Magistrate for amicable settlement of the dispute with the petitioner.
The petitions aredisposed ofwith these directions, t" The trial court records shall bereturned.
JANUARY 16, 2019 nk
Metropolitan Magistrate which shall be taken up for further proceedings in accordance with law on 26'^ February 2019.
The parties are directed to appear before the said court accordingly. If the second respondent so desires, and is inclined, he can make a suitable prayer before the Metropolitan Magistrate for amicable settlement of the dispute with the petitioner.
The petitions aredisposed ofwith these directions, t" The trial court records shall bereturned.
JANUARY 16, 2019 nk
CRL.M.C. 348/2018 & conn.
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JUDGMENT