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y $-16 HIGH COURT OF DELHI
CRL.L.P.388/2016
RAJBIR Petitioner
Through: Mr.Rajesh Yadav,Adv.
CRL.L.P.388/2016
RAJBIR Petitioner
Through: Mr.Rajesh Yadav,Adv.
VERSUS
STATE&ANR Respondents
Through ; Mr.Tarang Srivastava,APP for R-1.
Mr.Rajeev Saraswati,Adv.forR-2.
Through ; Mr.Tarang Srivastava,APP for R-1.
Mr.Rajeev Saraswati,Adv.forR-2.
CORAM:
HON'BLE MR.JUSTICE A.K.PATHAK
ORDER o/o 28.11.2016 Leaveto appealgranted. Registrytoregisterthe petitionasanappeal.
Crl.A. ///y /2016(to be numbered)
Arguments heard.
Appellant filed a complaint under Section 138 of the Negotiable
Instruments Act,1887('the Act'forshort). Afterrecording pre-summoning evidence vide order dated ?"■ January, 2015, trial court summoned accused/respondentunder Section 138 ofthe Act. After service,respondent appeared before trial court on 21" April, 2015. Thereafter, notice under
Section138 oftheAct was servedupontherespondenton8""July,2015 and matter was listed for complainant's evidence on 22"" July, 2015. On 22""
July, 2015, appellant examinedhimself as CW-1 and thereafter matter was
2016:DHC:8527 adjourned Respondentfiled the application for recalling CW-1,which was taken up on 27^^ April,2016. On 27*April,2016,trial courtfixed 4*May, 2016 for recording the statement of accused., On 4* May,2016, neither appellant nor respondent appeared in person nor were represented through lawyers. Consequently,complainthas been dismissed in default.
Leamed'counsel for appellant has contended that on 27 April,2016, appellanthad notedthe nextdate ofhearing as5*May,2016. Accordingly, appellantremained unrepresented on 4*May,2016. It is further submitted thatevenrespondenthad notnotedthe nextdateofhearing as4*May,2016 and for this reason respondent also remained unrepresented. Photocopy of case diary maintained by learned counsel for appellant has been placed on record. In the diary, next date ofhearing has been recorded as 5 May, 2016.
\ n ^ ' Pleataken by appellant,that wrong date ofhearing wasrecorded,is a probable plea and there is no reason to discard the same. More so, on, previous occasions, appellant had been pursuing the matter diligently and appearing in court. , , 'Fortheforegoingreasons,impugned orderdated4*May,2016,is set aside and complaintis restoredto its originalnumber.
Appeal is disposed ofin the above terms. Parties shall appear before the trial court on 15 December,2016.
NOVEMBER 28,2016/dk ATHAK,J.
ORDER o/o 28.11.2016 Leaveto appealgranted. Registrytoregisterthe petitionasanappeal.
Crl.A. ///y /2016(to be numbered)
Arguments heard.
Appellant filed a complaint under Section 138 of the Negotiable
Instruments Act,1887('the Act'forshort). Afterrecording pre-summoning evidence vide order dated ?"■ January, 2015, trial court summoned accused/respondentunder Section 138 ofthe Act. After service,respondent appeared before trial court on 21" April, 2015. Thereafter, notice under
Section138 oftheAct was servedupontherespondenton8""July,2015 and matter was listed for complainant's evidence on 22"" July, 2015. On 22""
July, 2015, appellant examinedhimself as CW-1 and thereafter matter was
2016:DHC:8527 adjourned Respondentfiled the application for recalling CW-1,which was taken up on 27^^ April,2016. On 27*April,2016,trial courtfixed 4*May, 2016 for recording the statement of accused., On 4* May,2016, neither appellant nor respondent appeared in person nor were represented through lawyers. Consequently,complainthas been dismissed in default.
Leamed'counsel for appellant has contended that on 27 April,2016, appellanthad notedthe nextdate ofhearing as5*May,2016. Accordingly, appellantremained unrepresented on 4*May,2016. It is further submitted thatevenrespondenthad notnotedthe nextdateofhearing as4*May,2016 and for this reason respondent also remained unrepresented. Photocopy of case diary maintained by learned counsel for appellant has been placed on record. In the diary, next date ofhearing has been recorded as 5 May, 2016.
\ n ^ ' Pleataken by appellant,that wrong date ofhearing wasrecorded,is a probable plea and there is no reason to discard the same. More so, on, previous occasions, appellant had been pursuing the matter diligently and appearing in court. , , 'Fortheforegoingreasons,impugned orderdated4*May,2016,is set aside and complaintis restoredto its originalnumber.
Appeal is disposed ofin the above terms. Parties shall appear before the trial court on 15 December,2016.
NOVEMBER 28,2016/dk ATHAK,J.
JUDGMENT