Top Victory Investments Ltd v. Anchal Enterprises

1. ~Having perused"the order sheets ofthe learned Trial Court,this Court CRL.L:Ps.427/20i7& 431/2017 page 1 of[4] 2018:DHC:9369 k deemsitfitto grantleaveto appeal.

2. Petitions are disposed of.,. Crl.Appeal No. M^9^/2ni8rto he nnmhprpH) Crl.AppealNb. /2ni8tto be niimhprpH)

1. Registryto numberthe appeals.

2. Appellant had filed two complaints before the learned Metropolitan, Magistrate under Section 138 Negotiable Instruments Act being Complaint n Case Nos. 28534/2016 and 29504/2016 (initially numbered as Complaint Case Nos.957/1/2015 and 958/1/2015)besides other complaints. The same came up before the learned Metropolitan Magistrate on 29'^ September, 2015 when they were listed for pre-summoning evidence ofthe authorised representative ofthe appellanton 29"^ January,2016. On 29"'January,2016 evidence by way of affidavit of the authorised representative of the complainant was tendered and documents were exhibited. Learned Trial Courtissued summons,to the respondent,returnable on June,2016 along with an application for compounding ofthe offence atthe first or the second hearing ofthe case.. th ' ' '

3. On 7 June, 2016 fresh vakalatnama was filed on behalf of the accused/respondent and ah exemption from personalappearance was also sought,which was granted and the complaints were put up for appearance of the accused/framing ofnotice under Section 251'Cr.P.C. on 30^"November,

2016. ^ th

4. On 30, November, 2.016 learned counsel for both the parties were present and requested for referring the matter to the Mediation Centre, Patiala House Court which reference was made and awaiting the report of CRL.L.PS.427/2017& 431/2017 page 2 of[4] > the mediation,the complaints were listed for 22"''December,2016. On 22"^ December, 2016 none appeared for the accused,however, learned,proxy counsel'for the complainant appeared and informed that the parties were' mediating before the Mediation Centre, Patiala House Courts. Thus, the complaints were fixed for 25"" March,,2017. It was also noted that the matter was fixed for mediation on 20""January,2017.On2D'January,2017 on the report of mediation having been received Court noted that none appeared for the complainant despite repeated calls though accused was present in person along^with the counsel and put up the matter for the date fixed,thatis,25"'March,2017. ' th n ' *

5. On 25 March, 2017, when none appeared for the complainant, learned Trial Court dismissed the complaintsiP defaultformon-prosecution.

6. As noted,date of2D'January,2017 was not fixed before the learned Trial Court and the complaints were taken up because ofthe.report received from the Judge In-charge,'Delhi Mediation Centre, Patiala House Courts who had sent the report that the parties could not' arrive at a"settlement. Thus though exemptions were sought on behalf of the accused/respondent on previous dates, learned counsel for the complainant was appearingregularly except for 25"' March,2017 on which date the complaints were dismissed for non-prosecution.

7. Explanation oflearned counsel forthe appellant is that iriadvertently,a wrong date was noted in the dairy oftheJeamed counsel. Copy ofthe diary dated 2D' January^,2017 of learned counsel has been placed on record wherein date of 28"' March, 2017 has been noted instead of 25"' March,

2017. ' D', n V CRL.L.PS.427/2017& 431/2017. page3of[4] /

8. In view of the explanation rendered the appeals are liable fo be allowed. Impugned order,disrnissing the complaints for non-prosecution and acquitting the respondent, are set aside. Complaint Case Nos., 28534/2016and 29504/2016titled as'M/sTop VictoryinvestmentsLtd;vs. M/sAnchalEnterprises'arerestoredtotheiroriginalposition.

9. Parties willappearbeforethelearned TrialCourton May,2018. /

10. Appeals are disposed of. "• O'derdasti. n APRIL12,2018 MUKTAGUPTA,J. 'vn'