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Date of Decision: 27^^February,2018
YAMAHA MOTOR INDIA PVT.LTD. Petitioner Represented by: Mr.Rahul Malhotra and
Mr.ArpitDwivedi,Advocates.
C;:V;;,.Sarkar,Advocates.
Crl.M.A.No.12701/2016(Del^t' ^ W/F:
JUDGMENT
1. Forthe reasons statedintheappliigatiph andthefactthatthe petitioner availed the remedy ofrevisipn^eM(|m^^fhe impugned order,which was not maintainable, delay the leave to appeal is.V\ condoned. 2.. Application is disposipd of. CRI..L.P.434/2016
1. By this petition the petitioner seeks leave to appeal against the judgment dated 11^^ September, 2015 whereby the learned Metropolitan Magistrate dismissed the complaint case being CC No. 219/1/11 titled as Yamaha Motor India Private Ltd. vs. Amit Jyoti under Section 138 ofthe NegotiableInstruments Act,1881 sinceforfour dates neitherthe authorized representative of the complainant nor the counsel for the complainant CRL.LP.434/2016 ^ 2018:DHC:9367 appeared and acquitted the respondent.
2. Having perused the orders passed by the learned Trial Court,copy of the diary of petitioner's counsel and on hearing learned counsel for the parties,this Courtdeems itfitto grantleave to appeal. 3.. Leaveto appeal petition is disposed of. Crl.Appeal No. 2018(to be numbered)
1. Registry to numberthe appeal.
2. Admit.
3. Learned counsel for the appellant has placed on record certified copies ofthe ordersheetofthe.learp^t^^coiirt. Asperthe orders passed bythelearned Trial Court,api^ellto^iith^b noted copipl^intwhich cameupforthefirsttimebefordthelearned Magistrateonll'^ July, 2017 and on the evidence.by Way of affidavit of the authorised representative of the coniplainar|t;beii|g'\filed on the same day and on hearing arguments learnedJ^^fep^l^Magistrate summoned the respondent as an accused. entered appearance and was granted bail. Both appear exceptfor an occasionalabrasionhere andthere andthetrial continued.
4. On 7^' January, 20l||59th;?^ns|^ complainant with the authorisedrepresentativeandtheaccusedwerepresent,however,thelearned th 1- Presiding Officer was on leave when the matter was fixed for 19 March,
2015. On 19"" March,2015 lawyers were abstaining from work,thus none appeared for the complainant however, accused/respondent appeared m person. The case wasfixed for V'May,2015 when none appeared forthe complainant and proxy counsel for the accused appeared and sought exemption from appearance ofthe accused/respondent which was allowed CRL.L.P.434/2016 Page2of[4] Z/' and the matter was listed for complainant's evidence on 9^*^ July,2015. On th • 9 July, 2015 again none appeared for the complainant though counsel for the accused appeared. The Court also directed that an affidavit be filed by the complainant as to whether the complainant maintained the bank account. The matter was listed for consideration on the point ofterritorialjurisdiction th for 11 September, 2015 when despite pass-over none appeared for the complainant nor was the mandate ofthe earlier order complied with. Thus the complaint was dismissed for non-appearance and the respondent was acquitted.
5. According to learned counsel,f0f.-& appellant, the authorised strike oflawyers,none appeare%and thdme&^^ ofhearing was notnoted I'T. V', • 'I ",J*. inthe dairy oflearned counsel. Copies ojfftheV'pages ofthe diary forthe dates V May,2015,9^^ July,2015 ahd-J^fS^en^ 2015 have been placed on record. It was only in the ^^nlhifof 5 when the clerk ofthe counsel for the appellant for the year 2016 that it was realized that in the above noted complaint case no date had been mentionedsince 1®'May,2fi;S#,QnTnspectipn;0||iiefileitwasrevealedthat n... -liV'J b. the complaint was dismissed on 11 September,2015.
6. n For the documents placed on record coupled with the copies of the diary ofthe counsel,this Court is ofthe opinion that sufficient cause has been shown by the appellant for non-appearance before the learned Trial Court 1'^ May,2015 and the three dates thereafter when the lawyers were abstaining from working.
7. The impugned judgment dated ll'^ September, 2015 dismissing the CRL.L.P.434/2016 Page3of[4] complaint in default under Section 256 Cr.P.C. is set aside subject to the appellant paying a cost of?10,000/- to be paid to the respondent on the next date ofhearing fixed before the learned Trial Court.
8. Appeal is disposed of.
9. Parties are directed to appear before the learned Trial Court on 20 March,2018.
10. Order dasti.
FEBRUARY 27,2018 'vn' (MUKTA'^GUPTA) JUDGE V; 'iP- i:iA... •; v[4] vA. '7.'.'.k'i:'': - \ v-i Vift".. "A ■= ? I'.s'-r- o r ? pcr ^-1 %;-