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$-19 HIGH COURT OF DELHI
CRL.L.P.525/2016
MOHDSHAFIQ . Petitioner
Through: Mr. Ghanshyam Yadav and Ms. Monika,Advs.
CRL.L.P.525/2016
MOHDSHAFIQ . Petitioner
Through: Mr. Ghanshyam Yadav and Ms. Monika,Advs.
VERSUS
V STATE(NCIOF DELHI)&ANR Respondents
Through: Dr.M.P.Singh,APP for R-1.
Through: Dr.M.P.Singh,APP for R-1.
CORAM:
HON'BLE MR.JUSTICE A.K.PATHAK
02.02.2017
02.02.2017
CRL.L.P.525/2016
Despite service,no one appearsforthe respondent no.2. Leaveto appeal granted. Registry to register the petition as an appeal.
Crl.A.No./^^/2017(to be numbered)
Since a short point is involved,appeal is being disposed ofafter hearing the arguments of learned counsel for the appellant and learned Additional
Public Prosecutor for the State.
Appellant filed a complaint under Section 138 of the Negotiable
Instruments Act against the respondent no.2,before the trial court. Vide order dated 14^'' July,2016,complaint has been dismissed in default and respondent no.2 has been acquitted under Section 256 Cr.P.C.
2017:DHC:8605 Learned counsel for the appellant submits that complaint case was transferred to the Court of Shri Dinesh Kumar, MM(T), North-East, Karkardooma Court,. Delhi pursuant to a letter No.ll'18-30/Judl./N-
E/KKD/Delhi/2016 dated 16.02.2016 of Learned District & Sessions Judge, North-East,KKD Courts,Delhi from the earlier Court. Transferee court took
. up the matter on 18^^ May,2016 and ordered for issuance offresh summonsto i" respondent no.2,returnable for.25'*' July,2016 on filing ofPF through Speed
Post within seven days,. It is submifred that appellant had noted the next date of hearing as 25.^'' July, 2016. However, appellant's counsel was not present when the date was given and he had noted down the date. It is contended that after the date of25"^ July,2016 was given,respondent no.2(accused)appeared in Court along with his counsel and at their request matter was fixed for 3'''^
June, 2016 instead of 25'^ July, 2016. Appellant remained under the impression that matter would be taken up on 25^''July,2016,therefore,did not appear m Court on 3'"^ June, 2016 and July, 2016 when the matter was taken up bythe Court. Thoughthe date,thatis,3''''June,2016 wasnotnotified tothe appellant. Itis submitted thaton25^''July,2016,counseldid notfind the matter in the Cause list. Accordingly, he made enquiries and came to know that matter was already dismissed in defaulton 14 July,2016.
I have perused the order dated 18^''May,2016. It is clearthattransferee
M courthad issued summonsto respondentno.2,returnable for 25^*^ July,2016. It appears thatsubsequently respondentno.2had appeared in Courtalong with his counsel and at their request date was fixed as 3'^'^ June,2016 for appearance of appellantand further proceedings. On IS'*"May,2016,counsel was notpresent whenthe matter wastaken up. In such ascenario,there is every possibility that
' counsel had earlier noted down the.date as 25^^ July, 2016. No court notice was issued to appellant or his counselfor their appearance on S"'* June,2016 and on 14''" July, 2016. The plea taken by the appellant that he remained unrepresented on 14'*^ July,2016 since next date ofhearing was noted by his counsel as 25^''July,2016,is a probable plea.
It is trite to say that appellant was notgoing to gain any benefitfrom his non appearance,more so he had been earlier pursuing the matter diligently.
^ For the foregoing reasons,impugned order dated 14'*^ July,2016 is set aside. Complaint case is restored to its original number. Parties to appear before the trial court on 10'*^ March,2017. -
Appeal is disposed ofin the aboveterms.' ! A.K.PjATHAK,J.
FEBRUARY 02,2017/dk
Despite service,no one appearsforthe respondent no.2. Leaveto appeal granted. Registry to register the petition as an appeal.
Crl.A.No./^^/2017(to be numbered)
Since a short point is involved,appeal is being disposed ofafter hearing the arguments of learned counsel for the appellant and learned Additional
Public Prosecutor for the State.
Appellant filed a complaint under Section 138 of the Negotiable
Instruments Act against the respondent no.2,before the trial court. Vide order dated 14^'' July,2016,complaint has been dismissed in default and respondent no.2 has been acquitted under Section 256 Cr.P.C.
2017:DHC:8605 Learned counsel for the appellant submits that complaint case was transferred to the Court of Shri Dinesh Kumar, MM(T), North-East, Karkardooma Court,. Delhi pursuant to a letter No.ll'18-30/Judl./N-
E/KKD/Delhi/2016 dated 16.02.2016 of Learned District & Sessions Judge, North-East,KKD Courts,Delhi from the earlier Court. Transferee court took
. up the matter on 18^^ May,2016 and ordered for issuance offresh summonsto i" respondent no.2,returnable for.25'*' July,2016 on filing ofPF through Speed
Post within seven days,. It is submifred that appellant had noted the next date of hearing as 25.^'' July, 2016. However, appellant's counsel was not present when the date was given and he had noted down the date. It is contended that after the date of25"^ July,2016 was given,respondent no.2(accused)appeared in Court along with his counsel and at their request matter was fixed for 3'''^
June, 2016 instead of 25'^ July, 2016. Appellant remained under the impression that matter would be taken up on 25^''July,2016,therefore,did not appear m Court on 3'"^ June, 2016 and July, 2016 when the matter was taken up bythe Court. Thoughthe date,thatis,3''''June,2016 wasnotnotified tothe appellant. Itis submitted thaton25^''July,2016,counseldid notfind the matter in the Cause list. Accordingly, he made enquiries and came to know that matter was already dismissed in defaulton 14 July,2016.
I have perused the order dated 18^''May,2016. It is clearthattransferee
M courthad issued summonsto respondentno.2,returnable for 25^*^ July,2016. It appears thatsubsequently respondentno.2had appeared in Courtalong with his counsel and at their request date was fixed as 3'^'^ June,2016 for appearance of appellantand further proceedings. On IS'*"May,2016,counsel was notpresent whenthe matter wastaken up. In such ascenario,there is every possibility that
' counsel had earlier noted down the.date as 25^^ July, 2016. No court notice was issued to appellant or his counselfor their appearance on S"'* June,2016 and on 14''" July, 2016. The plea taken by the appellant that he remained unrepresented on 14'*^ July,2016 since next date ofhearing was noted by his counsel as 25^''July,2016,is a probable plea.
It is trite to say that appellant was notgoing to gain any benefitfrom his non appearance,more so he had been earlier pursuing the matter diligently.
^ For the foregoing reasons,impugned order dated 14'*^ July,2016 is set aside. Complaint case is restored to its original number. Parties to appear before the trial court on 10'*^ March,2017. -
Appeal is disposed ofin the aboveterms.' ! A.K.PjATHAK,J.
FEBRUARY 02,2017/dk
JUDGMENT