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$-18 HIGH COURT OF DELHI
CRL.L.P.531/2016 , .
MOHDISRAIL
Petitioner Represented by: Mr.Rakesh Mukhija,Adv. r
CRL.L.P.531/2016 , .
MOHDISRAIL
Petitioner Represented by: Mr.Rakesh Mukhija,Adv. r
VERSUS
STATE & ANR.
Respondent Represented by: Ms.Meenakshi Chauhan,APP.
Respondent Represented by: Ms.Meenakshi Chauhan,APP.
CORAM:
HON'BLE MS.JUSTICE MUKTA GUPTA
12.02.2018 Despite service none appears on behalfofthe respondentNo.2.
Having perused the order sheets of the learned Trial Court leave to appeal is granted to the petitioner.
Petition is disposed of.
CRT.A. J9/ /2018 CRegistrv'to numberthe appeal)
Admit. ■ ■
Aggrieved by the order dated 27^^ February, 2016 dismissing the complaintfor wantofprosecutionandin default,the petitionerhad preferred the leaveto appeal petition whereonthis appeal has beenregistered.
The petitioner preferred complaint case No.3966/2015 titled as
'Mohd. Israil Vs. Manish Rai' under Section 138 of the Negotiable
12.02.2018 Despite service none appears on behalfofthe respondentNo.2.
Having perused the order sheets of the learned Trial Court leave to appeal is granted to the petitioner.
Petition is disposed of.
CRT.A. J9/ /2018 CRegistrv'to numberthe appeal)
Admit. ■ ■
Aggrieved by the order dated 27^^ February, 2016 dismissing the complaintfor wantofprosecutionandin default,the petitionerhad preferred the leaveto appeal petition whereonthis appeal has beenregistered.
The petitioner preferred complaint case No.3966/2015 titled as
'Mohd. Israil Vs. Manish Rai' under Section 138 of the Negotiable
CRL.L.P.531/2016 page 1 of3
2018:DHC:9338 / Instruments Act. The allegation ofthe petitioner in the complaint was that
.the respondent No.2 in discharge of his liability issued two cheques for a. sum of ?50,000/- and ?91,800/- respectively drawn on HDFC Bank, Kapashera, Delhi which on presentation were returned with the remarks
"FundsInsufficientandPaymentstopped by drawer". Despite alegalnotice being issued to the respondent No.2 no reply was forthcoming nor was the liability discharged,hencethe petitionerfiledthe complaint.
The said complaint came up on 5^*^ May,2015 when,pre-summoning evidence ofthe complainant was recorded and the learned Trial Courttook cognizanceofthe offence andsummonswereissuedtotherespondentNo.2.
On 26^^ May,2015 the next date learned Trial Court noted thatthe parties wanted to settle the complaint and referred the matter to Mediation Centre, Dwarka Courts. Learned Trial Court also noted that as per the settlement, the accused undertookto pay asum of? 1,35,000/-tothe complainantinsix instalments, where after the petitioner/ complainant sought withdrawal of the cases. Statementofboththe complainantand accused wererecordedin this regard. •
Matter was listed for payment ofthe first instalment on 23' June, 2016 when thepetitioner along with hiscounselwaspresent. On apleaof terntorialjurisdictionthelearned Trial Courtfixedthe matterforiC"July, 2015 by which date the,complainant filed the affidavit disclosing the particulars ofhis bank account. The matter wasthereafter,listed for30"'
July,2015 when.again complainant was presentin person. Learned Trial
Courttransferredthecasefrom CentralDistrict,TisHazariCourtsto South
WestDistrict,DwarkaCourts. Inviewoftheamendmentthattookplacethe vase 2 of 3
CRL.L.P,531/2016 matter was again listed before the learned Metropolitan Magistrate, Central
District on 7'*^ September,2015 and 19"^ November,2015 when complainant was present but accused- not being present non-bailable warrants were issued. The next date fixed before the Trial Court was 27^'^ Februaiy,2016 which date was inadvertently wrongly noted by the learned counsel as is / evident from the copy of the diary of the learned counsel. Hence on 27 February, 2016 after giving a pass-over the learned Trial Court dismissed the complaint due to non-presence ofcomplainant or his counsel.
For the explanation rendered by the learned counsel based on the affidavit and a copy of the diary of the counsel being enclosed therewith, this Court deems it fit to restore the complaintto its original position.
The order dated February, 2016 dismissing the complaint for want of prosecution is set aside. Complaint is restored to its original position and the same be listed before the learned Metropolitan Magistrate i.e. successor Court ofMs.Neha Gupta Singh on 7'^^ March,2018 subjectto a cost of?10,000/- to be deposited by the petitioner with the Delhi High
CourtLegal Services Committee within two weeks. Proofofcost be shown to the learned Trial Court.
Appeal is accordingly disposed of. Order dasti.
MUKTA GUPTA,J.
FEBRUARY 12,2018 'ga'
2018:DHC:9338 / Instruments Act. The allegation ofthe petitioner in the complaint was that
.the respondent No.2 in discharge of his liability issued two cheques for a. sum of ?50,000/- and ?91,800/- respectively drawn on HDFC Bank, Kapashera, Delhi which on presentation were returned with the remarks
"FundsInsufficientandPaymentstopped by drawer". Despite alegalnotice being issued to the respondent No.2 no reply was forthcoming nor was the liability discharged,hencethe petitionerfiledthe complaint.
The said complaint came up on 5^*^ May,2015 when,pre-summoning evidence ofthe complainant was recorded and the learned Trial Courttook cognizanceofthe offence andsummonswereissuedtotherespondentNo.2.
On 26^^ May,2015 the next date learned Trial Court noted thatthe parties wanted to settle the complaint and referred the matter to Mediation Centre, Dwarka Courts. Learned Trial Court also noted that as per the settlement, the accused undertookto pay asum of? 1,35,000/-tothe complainantinsix instalments, where after the petitioner/ complainant sought withdrawal of the cases. Statementofboththe complainantand accused wererecordedin this regard. •
Matter was listed for payment ofthe first instalment on 23' June, 2016 when thepetitioner along with hiscounselwaspresent. On apleaof terntorialjurisdictionthelearned Trial Courtfixedthe matterforiC"July, 2015 by which date the,complainant filed the affidavit disclosing the particulars ofhis bank account. The matter wasthereafter,listed for30"'
July,2015 when.again complainant was presentin person. Learned Trial
Courttransferredthecasefrom CentralDistrict,TisHazariCourtsto South
WestDistrict,DwarkaCourts. Inviewoftheamendmentthattookplacethe vase 2 of 3
CRL.L.P,531/2016 matter was again listed before the learned Metropolitan Magistrate, Central
District on 7'*^ September,2015 and 19"^ November,2015 when complainant was present but accused- not being present non-bailable warrants were issued. The next date fixed before the Trial Court was 27^'^ Februaiy,2016 which date was inadvertently wrongly noted by the learned counsel as is / evident from the copy of the diary of the learned counsel. Hence on 27 February, 2016 after giving a pass-over the learned Trial Court dismissed the complaint due to non-presence ofcomplainant or his counsel.
For the explanation rendered by the learned counsel based on the affidavit and a copy of the diary of the counsel being enclosed therewith, this Court deems it fit to restore the complaintto its original position.
The order dated February, 2016 dismissing the complaint for want of prosecution is set aside. Complaint is restored to its original position and the same be listed before the learned Metropolitan Magistrate i.e. successor Court ofMs.Neha Gupta Singh on 7'^^ March,2018 subjectto a cost of?10,000/- to be deposited by the petitioner with the Delhi High
CourtLegal Services Committee within two weeks. Proofofcost be shown to the learned Trial Court.
Appeal is accordingly disposed of. Order dasti.
MUKTA GUPTA,J.
FEBRUARY 12,2018 'ga'
CRL.L.P.531/2016 ^ page3of3
JUDGMENT