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$-32 HIGH COURT OF DELHI
CRL.L.P. 319/2014
JINDAL STAINLESS STEELWAY LTD ..... Petitioner
Through : Mr. Vivek Gupta, Adv.
CRL.L.P. 319/2014
JINDAL STAINLESS STEELWAY LTD ..... Petitioner
Through : Mr. Vivek Gupta, Adv.
VERSUS
SHANTI INDUSTRIES ..... Respondent
Through Mr. Abdul Azeern Kalebudde, Adv.
Through Mr. Abdul Azeern Kalebudde, Adv.
CORAM:
HON'BLE MR. JUSTICE A.K. PATHAK
20.07.2016 CrI.
M.A. No. 8975/2016 (for condonation of delay)
Petitioner filed a complaint under Sections 138/142 of the Negotiable
Instruments Act, 1881 ('the Act', for short) against the respondent in respect of a dishonoured cheque before the Metropolitan Magistrate, Delhi. Vide order dated 5th June, 2013 complaint was dismissed in default for non- appearance as well as non-prosecution and respondent was acquitted.
Petitioner filed a revision petition before the District Judge, which was also dismissed vide order dated I" October, 2013. Since complaint was dismissed in default for non-prosecution and respondent was acquitted, revision petition was not maintainable. The appropriate remedy available to
2016:DHC:8508 the petitioner was to file a petition under Section 378(4) of the Code of
Criminal Procedure, 1973 (Cr.P.C.). Thus, the order passed in the revision petition is non est.
After dismissal of the revision petition, petitioner preferred a Crl.
M.C. No. 41/2014 on 7 1h December,2013. Vide order dated 6 th
May, 2014 0 petition was treated as 'criminal leave petition' and Registry was directed to register the petition as 'criminal 1%-.ave petition'. Petitioner was afforded opportunity to file the application for condonation of delay. Pursuant to this order, present application has been filed. It appears that petitioner continued to pursue the wrong legal remedy on incorrect legal advice. The period during which petitioner pursued the wrong remedy is excluded.
Keeping in mind the period d, ,iring which petitioner had been pursuing the wrong remedy, delay in filing the revision petition is condoned.
Application is disposed of in the above terms.
20.07.2016 CrI.
M.A. No. 8975/2016 (for condonation of delay)
Petitioner filed a complaint under Sections 138/142 of the Negotiable
Instruments Act, 1881 ('the Act', for short) against the respondent in respect of a dishonoured cheque before the Metropolitan Magistrate, Delhi. Vide order dated 5th June, 2013 complaint was dismissed in default for non- appearance as well as non-prosecution and respondent was acquitted.
Petitioner filed a revision petition before the District Judge, which was also dismissed vide order dated I" October, 2013. Since complaint was dismissed in default for non-prosecution and respondent was acquitted, revision petition was not maintainable. The appropriate remedy available to
2016:DHC:8508 the petitioner was to file a petition under Section 378(4) of the Code of
Criminal Procedure, 1973 (Cr.P.C.). Thus, the order passed in the revision petition is non est.
After dismissal of the revision petition, petitioner preferred a Crl.
M.C. No. 41/2014 on 7 1h December,2013. Vide order dated 6 th
May, 2014 0 petition was treated as 'criminal leave petition' and Registry was directed to register the petition as 'criminal 1%-.ave petition'. Petitioner was afforded opportunity to file the application for condonation of delay. Pursuant to this order, present application has been filed. It appears that petitioner continued to pursue the wrong legal remedy on incorrect legal advice. The period during which petitioner pursued the wrong remedy is excluded.
Keeping in mind the period d, ,iring which petitioner had been pursuing the wrong remedy, delay in filing the revision petition is condoned.
Application is disposed of in the above terms.
CREEP. 319/2014
Leave to appeal granted. Registry to register the petition as an appeal.
CrI. A.No.~,6 F/2016(To be num'-')ered)
Since short point is involved, arguments heard and the material placed on record, perused. Order of the learned Metropolitan Magistrate dated 5
1h A June, 2013, impugned in this appeal, is as under:-
"Present: None for the complainant.
Previous cost not deposited despite last and final opportunity and hence summons not issued. Today also despite several calls, the complainant is absent. Even his counsel has not
I appeared on behalf of the him. No reason for their absence is forthcoming.
In view of the facts and circumstances and discussion above, I am satisfied that the complainant is not interested in prosecuting his own case. Therefore, the present complaint is dismissed in default for non appearance as well as non prosecution. Accused is acquitted.
Bail bond, if any, stands cancelled and 4t surety, if any, is discharged. File be consigned to record room after due compliance."
Learned trial court has dismissed the complaint on two grounds; one ground is "non appearance of the appellant" and other is "non prosecution".
Trial court has noted that previous cost was not deposited despite last opportunity hence, summons were not issued, consequently has formed an opinion that appellant had not been prosecuting the case properly. Appellant
I has placed on record the photocopy of the receipt dated I 8th April, 2013 issued by Delhi State Legal Aid Services Authority, which shows that cost was deposited. Process fee was also filed on I 8th April, 2013 which is evident from the photocopy of the process fee form. Accordingly, in my view, trial court has erred in putting on record that previous cost had not been deposited despite last and final opportunity, hence, summons not
0 issued. Cost was deposited and receipt was annexed along with the process fee for issuance of the summons, returnable for 5t' June, 2013, therefore, it cannot be said that matter was not prosecuted diligently.
As regards non-appearance of the appellant on 5th June, 2013, it is submitted that appellant's counsel was unwell, therefore, could not appear.
The Authorised Representative of the appellant reached in Court late due to traffic jam and by that time matter was over. It is submitted that appellant
4 had been pursuing the matter diligently, inasmuch as arguments were advanced on 151h
March, 2013 and thereafter, learned Metropolitan
Magistrate had passed the order for summoning of the respondent for I 81h
April, 2013. Since steps were not taken, vide order dated I 8th April, 2013 cost of Z500/- was imposed, which was deposited, inasmuch as steps were taken for issuance of the summons for 5th June, 2013. In my view, non appearance of the counsel and the appellant when the matter was taken up has been explained. Appellant had nothing to gain from his non-appearance and dismissal of the complaint as it was detrimental to its interest.
For the foregoing reasons, impugned order dated 5Ih
June, 2013 is set aside and complaint is restored at its original number, subject to, however, costs of Z25,000/- to be paid to the respondent.
I Parties shall appear before the concerned Metropolitan Magistrate on th
September, 2016.
Appeal is disposed of in the above terms.
A.K. PATHAK, J.
JULY 209 2016 rb 4kf
Leave to appeal granted. Registry to register the petition as an appeal.
CrI. A.No.~,6 F/2016(To be num'-')ered)
Since short point is involved, arguments heard and the material placed on record, perused. Order of the learned Metropolitan Magistrate dated 5
1h A June, 2013, impugned in this appeal, is as under:-
"Present: None for the complainant.
Previous cost not deposited despite last and final opportunity and hence summons not issued. Today also despite several calls, the complainant is absent. Even his counsel has not
I appeared on behalf of the him. No reason for their absence is forthcoming.
In view of the facts and circumstances and discussion above, I am satisfied that the complainant is not interested in prosecuting his own case. Therefore, the present complaint is dismissed in default for non appearance as well as non prosecution. Accused is acquitted.
Bail bond, if any, stands cancelled and 4t surety, if any, is discharged. File be consigned to record room after due compliance."
Learned trial court has dismissed the complaint on two grounds; one ground is "non appearance of the appellant" and other is "non prosecution".
Trial court has noted that previous cost was not deposited despite last opportunity hence, summons were not issued, consequently has formed an opinion that appellant had not been prosecuting the case properly. Appellant
I has placed on record the photocopy of the receipt dated I 8th April, 2013 issued by Delhi State Legal Aid Services Authority, which shows that cost was deposited. Process fee was also filed on I 8th April, 2013 which is evident from the photocopy of the process fee form. Accordingly, in my view, trial court has erred in putting on record that previous cost had not been deposited despite last and final opportunity, hence, summons not
0 issued. Cost was deposited and receipt was annexed along with the process fee for issuance of the summons, returnable for 5t' June, 2013, therefore, it cannot be said that matter was not prosecuted diligently.
As regards non-appearance of the appellant on 5th June, 2013, it is submitted that appellant's counsel was unwell, therefore, could not appear.
The Authorised Representative of the appellant reached in Court late due to traffic jam and by that time matter was over. It is submitted that appellant
4 had been pursuing the matter diligently, inasmuch as arguments were advanced on 151h
March, 2013 and thereafter, learned Metropolitan
Magistrate had passed the order for summoning of the respondent for I 81h
April, 2013. Since steps were not taken, vide order dated I 8th April, 2013 cost of Z500/- was imposed, which was deposited, inasmuch as steps were taken for issuance of the summons for 5th June, 2013. In my view, non appearance of the counsel and the appellant when the matter was taken up has been explained. Appellant had nothing to gain from his non-appearance and dismissal of the complaint as it was detrimental to its interest.
For the foregoing reasons, impugned order dated 5Ih
June, 2013 is set aside and complaint is restored at its original number, subject to, however, costs of Z25,000/- to be paid to the respondent.
I Parties shall appear before the concerned Metropolitan Magistrate on th
September, 2016.
Appeal is disposed of in the above terms.
A.K. PATHAK, J.
JULY 209 2016 rb 4kf
JUDGMENT