Indusind Media & Communication Ltd v. Acme Digicom Pvt. Ltd. & Ors.

1. Having perused copy of the diary of the learned counsel for the petitioner,leave to appeal is granted.

2. Petition is disposed of. Crl.A.No.92-^^/2018(to be numbered!

1. Registry to numberthe appeal.

2. Admit.

3. Aggrieved bythe order dated 11'^.July,2017dismissingthe complaint filed by the petitioner under Section 138 Negotiable Instruments Act(in short 'NI Act') on the ground that the petitioner failed to lead its presummoning evidence norfiled the originalcheque and none appearedforthe complainant,petitioner prefersthe present appeal.

4. Learned counsel for the respondent vehemently opposing the restoration ofthe complaint case submits that there is gross negligence on CRL.L.P.555/2017 ^ 2018:DHC:9376 the part ofthe petitioner for the reason this was the second default. Earlier also repeatedly the authorised representative or the counselforthe petitioner failed to appear and despite indulgence by the Court of granting adjournments the complaint was earlier dismissed which was restored and again the authorised representative of the petitioner failed to appear. Petitioner is dragging the trial, is not interested in leading the presummoning evidence and has also not filed the original cheque in question till date.

5. This court has perused the order sheets ofthe learned Trial Court.

6. Complaint case No.2517 titled as Indusind Media& Communications Ltd. vs. M/s Acme Digicom Pvt. Ltd. & Ors. came up before the learned Metropolitan Magistrate on 17^^ September, 2014 when the authorised representative of the petitioner was not available. Again on the next two datesthe authorised representative ofthe complainant was not available. On 12^''August,2015,thatis,thefourth date beforethelearned Trial Courtnone appeared despite calls. However,in the interest ofjustice the learned Trial Courtrenotified the complaintfor6*November,2015 for appearance ofthe authorisedrepresentative ofthe complainant,whenthePresiding Officerhad gone for judicial training. Even on the next date,that is, 22 December, th 2015, none appeared despite calls and the matter was renotified for 27 February, 2016 granting last and final opportunity for appearance of the authorised representative ofthe complainant. On 27^'February,2016,astill

14.25 hours none appeared on behalfofthe complainant,the complaint was dismissed in defaultas well asfor non-prosecution.

7. The petitioner challenged the order dated 2?"' February, 2016 by filing a revision petition before the learned Additional Sessions Judge which was allowed and the complaint was restored to its original position subject to cost of?2,500/- to be deposited with the Delhi Legal Services Authority, South District, Saket Court. The matter was listed before the learned Metropolitan Magistrate on 20 September, 2016 when none appeared again. On 2^^ November,2016 none appeared nor was the cost paid hence the file was consigned to the record room to be restored as and when the complainant complied with the order of the learned Additional Sessions Judge dated 17^^ September,2016.

8. On 17^*^ November,2016,the complainant produced receipt ofdeposit of the cost, hence the application was allowed and the complaint was reiiOtified for appearance ofthe authorised representative ofthe complainant for 25'^ January, 2017. On 25'*' January, 2017 none appeared for the complainant. Hence notice was issued to the complainant to appear in person or by way ofauthorised representative on 20^*^ March,2017. On20 March, 3017, when the complaint was next listed, at the request of the authorised representative ofthe complainantlast opportunity was granted to lead pre-summoningevidence andthe matterwaslistedfor30 May,2017.

9. Again on 30*May,2017none appeared on behalfofthe complainant whenthe Courtrenotified the matterfor 11*July,2017,whenthe complaint was dismissed for non-prosecution.

10. From the perusal ofthe order sheets contention oflearned counselfor the respondent that there has been gross negligence in pursuing the complaintis fortified. The explanation oflearned counselfor the petitioner isthatthe petitionercompany hasnow changed its authorised representative as well as the counsel who were not pursuing the complaint diligently. Hence one more opportunity be granted to the complainant.

11. It is trite law thatfor the inaction or the negligence ofthe counsel,the parties cannot be made to suffer. Thus this Court,in the interest ofjustice, deems it fit to grant one more opportunity to the complainant to pursue the complaint diligently. th

12. Impugned order dated 11 July, 2017 is set aside subject to the petitioner paying the cost of ?50,000/- to the learned counsel for the respondent. List before the learned Trial Court on 5'^ October,2018,when the learned counsel for the parties and the authorised representative ofthe complainant would be present for leading pre summoning evidence. Any documents required to be filed by the petitioner would be filed before the said date and on the said date the petitioner would lead its pre-summoning evidence. In case on the said date the pre-summoning evidence cannot be led because of the non-availability of the presiding officer or non availability ofthe time, one more date will be granted to the petitioner to lead the pre-summoning evidence and pursue the complaint. The cost of ?50,000/- will be paid tothe learned counselforthe respondenton or before thenextdate ofhearing and onlythereafterthe complaintwill be proceeded.