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HIGH COURT OF DELHI
CRL.L.P.528/2015
M/S SEDNA IMPEX INDIA PVT LTD..... Petitioner
Through: Mr. Yashartha Gupta, Advocate
HIGH COURT OF DELHI
CRL.L.P.528/2015
M/S SEDNA IMPEX INDIA PVT LTD..... Petitioner
Through: Mr. Yashartha Gupta, Advocate
VERSUS
M/S AMITOJE CREATIONS & ORS..... Respondent
Through: Mr. Abhishek Kaushik, Advocate
Through: Mr. Abhishek Kaushik, Advocate
CORAM:
HON'BLE MR.JUSTICE VIPIN SANGHI
20.07.2016 I have heard learned counsel for the parties and with the consent of the respondent, leave is granted and the appeal is taken up for hearing. The registry is directed to register ai~d number the appeal.
CO.A. No......... ..../2016 The appellant is aggrieved by the order dated 15.04.2015 passed by the learned MM-01, North Rohini, Delhi in CC No.131/2001,PS Netaji Subash
Place under section 138 of Negotiable Instruments Act. The impugned order shows that the appellant/ complainant did not appear before the learned Magistrate and, consequently, the complaint was dismissed in default and for non prosecution, and the respondent/accused was acquitted.
The order shows that court notice had been issued and the same had been
A
2016:DHC:8509 received back with a report that the complainant has left the address. None had appeared for the complainant before the learned Magistrate when the order was passed. The explanation given by the complainant leading to the passing of the impugned order is found in para 8 to 10 of the appeal, which reads as follows:
"8. That on 19.08.2014 the Id. Counsel was struck in other matter at Dwarka Court and the appellant was on business trip.
On that date due this neither the appellant nor the respondents appeared The Id. MM Abhilash Malhotra issued notice to the appellant company for dated 01.12.2014. But, unfortunately the same was not served to the complainant company at his registered office mentioned in the complaintfiled.
That on dated 01.12.2014 the Id. PO was on leave and the Ld Link MM, Rohini Courtfiirther issued notice in terms to the previous order to the complainant only not the respondents andfixed the date 15.04.2015. The appellant approached on
15.04.2015 andfound that the matter was reflected in the cause list. The appellant had enquired the matterftom the court staff and they informed to appellant came later on as they are busy in regular work of the court. When the appellant again approached to the court staff on dated 1604.2015, the court staff of the Id MM Abhilash Malhotra informed that the matter has been already transferred to another court and a notice will be received to appellant for the next date of hearing. The appellant has informed to samejacts to his counsel.
That the counsel of the appellant on dated 18.04.2015 approached to the court staff of the Id. MM A bhilash Malhotra and came to know that the matter has been transferred much earlier i. e. in the month of March 2 014 itse~fjrom his court and the predecessor court has not issued notice to the appellant.
When the counsel approached to successor court on 18.04.2015 and enquired the matterftom the court staff The counselfor the appellantfurther came to know that the matter was taken on
15.04.2015 and thereafter fixed for next date i.e. 16.04.2015 and dismissed in default for non appearance and non prosecution".
Considering the aforesaid, it appears that the non appearance of the appellant was not entirely on account of default on the part of the appellant.
In my view, the appellant has disclosed sufficient cause for non appearance.
At the same time, the respondent has been subjected to harassment for no fault of it. Accordingly, the impugned order is set aside and the complaint is restored to its original number, subject to payment of costs of Rs. 10,000/- to the respondent to be paid within four weeks.
The parties shall appear before the concerned Magistrate on
10.08.2016.
VIPIN SANGH1, J JULY 20, 2016 sr 6i:71
20.07.2016 I have heard learned counsel for the parties and with the consent of the respondent, leave is granted and the appeal is taken up for hearing. The registry is directed to register ai~d number the appeal.
CO.A. No......... ..../2016 The appellant is aggrieved by the order dated 15.04.2015 passed by the learned MM-01, North Rohini, Delhi in CC No.131/2001,PS Netaji Subash
Place under section 138 of Negotiable Instruments Act. The impugned order shows that the appellant/ complainant did not appear before the learned Magistrate and, consequently, the complaint was dismissed in default and for non prosecution, and the respondent/accused was acquitted.
The order shows that court notice had been issued and the same had been
A
2016:DHC:8509 received back with a report that the complainant has left the address. None had appeared for the complainant before the learned Magistrate when the order was passed. The explanation given by the complainant leading to the passing of the impugned order is found in para 8 to 10 of the appeal, which reads as follows:
"8. That on 19.08.2014 the Id. Counsel was struck in other matter at Dwarka Court and the appellant was on business trip.
On that date due this neither the appellant nor the respondents appeared The Id. MM Abhilash Malhotra issued notice to the appellant company for dated 01.12.2014. But, unfortunately the same was not served to the complainant company at his registered office mentioned in the complaintfiled.
That on dated 01.12.2014 the Id. PO was on leave and the Ld Link MM, Rohini Courtfiirther issued notice in terms to the previous order to the complainant only not the respondents andfixed the date 15.04.2015. The appellant approached on
15.04.2015 andfound that the matter was reflected in the cause list. The appellant had enquired the matterftom the court staff and they informed to appellant came later on as they are busy in regular work of the court. When the appellant again approached to the court staff on dated 1604.2015, the court staff of the Id MM Abhilash Malhotra informed that the matter has been already transferred to another court and a notice will be received to appellant for the next date of hearing. The appellant has informed to samejacts to his counsel.
That the counsel of the appellant on dated 18.04.2015 approached to the court staff of the Id. MM A bhilash Malhotra and came to know that the matter has been transferred much earlier i. e. in the month of March 2 014 itse~fjrom his court and the predecessor court has not issued notice to the appellant.
When the counsel approached to successor court on 18.04.2015 and enquired the matterftom the court staff The counselfor the appellantfurther came to know that the matter was taken on
15.04.2015 and thereafter fixed for next date i.e. 16.04.2015 and dismissed in default for non appearance and non prosecution".
Considering the aforesaid, it appears that the non appearance of the appellant was not entirely on account of default on the part of the appellant.
In my view, the appellant has disclosed sufficient cause for non appearance.
At the same time, the respondent has been subjected to harassment for no fault of it. Accordingly, the impugned order is set aside and the complaint is restored to its original number, subject to payment of costs of Rs. 10,000/- to the respondent to be paid within four weeks.
The parties shall appear before the concerned Magistrate on
10.08.2016.
VIPIN SANGH1, J JULY 20, 2016 sr 6i:71
JUDGMENT